E
SCCR/33/7
ORIGINAL: ENGLISH
DATE: FEBRUARY 1, 2017
Standing Committee on Copyright and Related Rights
Thirty-third Session
Geneva, November 14 to 18, 2016
DRAFT REPORT
Prepared by the Secretariat
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page 2
1.
The Standing Committee on Copyright and Related Rights (hereinafter referred to as the
“Committee”, or the “SCCR”) held its Thirty-Third Session in Geneva, from
November 14 to 18, 2016.
2.
The following Member States of the World Intellectual Property Organization (WIPO)
and/or members of the Bern Union for the Protection of Literary and Artistic Works were
represented in the meeting: Algeria, Argentina, Armenia, Australia, Bahamas, Belarus,
Belgium, Bhutan, Brazil, Bulgaria, Cameroon, Canada, Chile, China , Colombia, Costa Rica,
Côte d’Ivoire, Cuba, Cyprus,Czech Republic, Democratic People's Republic of Korea, Denmark,
Djibouti, Dominican Republic, Ecuador ,El Salvador, Estonia, Finland, France, Gabon,
Germany, Greece, Guatemala, Haiti, Holy See, Honduras, Hungary, India, Indonesia, Iran
(Islamic Republic of), Iraq, Israel, Italy, Japan, Kazakhstan, Kenya, Lebanon, Malawi, Malta,
Mexico, Morocco, Mozambique, Nepal, New Zealand, Nigeria, Oman, Peru, Philippines, Poland,
Portugal, Qatar, Republic of Korea, Republic of Moldova, Romania, Russian Federation,
Senegal, Slovakia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Thailand, Turkey,
Ukraine, United Arab Emirates, United Kingdom, United States of America, Uruguay, Viet Nam
and Yemen (81).
3.
The European Union (EU) participated in the meeting in a member capacity.
4.
The following Intergovernmental Organizations (IGOs) took part in the meeting in an
observer capacity: African Union (AU), Organization Internationale de la Francophonie (OIF),
Organization of Islamic Cooperation (OIC), South Centre (SC) and the World Trade
Organization (WTO) (5).
5.
The following non-governmental organizations (NGOs) took part in the meeting in an
observer capacity: Actors, Interpreting Artists Committee (CSAI), African Library and
Information Associations and Institutions (AfLIA), Agence pour la Protection des Programmes
(APP), Alianza de Radiodifusores Iberoamericanos para la Propiedad Intelectual (ARIPI),
Archives et Records Association (ARA)/Archives and Records Association (ARA), Asia-Pacific
Broadcasting Union (ABU), Associación Argentina de Intérpretes (AADI) Association for the
International Collective Management of Audiovisual Works (AGICOA), Association of
Commercial Television in Europe (ACT), Association of European Perfomers' Organizations
(AEPO-ARTIS), British Copyright Council (BCC), Canadian Copyright Institute (CCI), Central
and Eastern European Copyright Alliance (CEECA), Centre for International Intellectual
Property Studies (CEIPI), Centre for Internet and Society (CIS), Chamber of Commerce and
Industry of the Russian Federation (CCIRF), Civil Society Coalition (CSC), Communia,
Copyright Research and Information Center (CRIC), Creative Commons Corporation, Daisy
Consortium (DAISY), Digital Video Broadcasting (DVB), Electronic Information for Libraries
(eIFL.net), European Broadcasting Union (EBU), European Bureau of Library, Information and
Documentation Associations (EBLIDA), European Law Students’ Association
(ELSA International), European Publishers Council (EPC), European Visual Artists (EVA),
Fédération européenne des sociétés de gestion collective de producteurs pour la copie privée
audiovisuelle (EUROCOPYA), German Library Association, Ibero-Latin-American Federation of
Performers (FILAIE), Instituto Autor, International Association of Broadcasting (IAB),
International Association for the Protection of Intellectual Property (AIPPI), International
Association of Scientific Technical and Medical Publishers (STM), International Authors Forum
(IAF), International Center for Trade and Sustainable Development (ICTSD), International
Confederation of Music Publishers (ICMP), International Confederation of Societies of Authors
and Composers (CISAC), International Council of Museums (ICOM), International Council on
Archives (ICA), International Federation of Actors (FIA), International Federation of Journalists
(IFJ), International Federation of Library Associations and Institutions (IFLA), International
Federation of Musicians (FIM), International Federation of Reproduction Rights Organizations
(IFRRO), International Federation of the Phonographic Industry (IFPI), International Literary and
Artistic Association (ALAI), International Publishers Association (IPA), International Society for
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the Development of Intellectual Property (ADALPI), International Video Federation (IVF),
Karisma Foundation, Knowledge Ecology International, Inc. (KEI), Latín Artis, Library Copyright
Alliance (LCA), Max-Planck Institute for Intellectual Property and Competition Law (MPI),
Motion Picture Association (MPA), North American Broadcasters Association (NABA),
Scottish Council on Archives (SCA), Society of American Archivists (SAA), The Japan
Commercial Broadcasters Association (JBA), Third World Network Berhad (TWN),
World Association of Newspapers (WAN) and World Blind Union (WBU) (65).
AGENDA ITEM 1: OPENING OF THE SESSION
6.
The Chair welcomed the delegates to the Thirty-Third Session of the SCCR and invited
the Deputy Director General of Copyright and Creative Industries Sector to provide her opening
address.
7.
The Deputy Director General joined the Chair in welcoming the delegates to the ThirtyThird Session of the SCCR and assured the Standing Committee that it had the full support of
the Secretariat. The Deputy Director General observed that the Committee had two main items
on its Agenda, namely, broadcasting and exceptions and limitations. On the first item, the
broadcasting treaty, the Deputy Director General stated that as the technical studies were ripe,
she had noticed a desire to complete the work of the Treaty very soon. She indicated that some
members had encouraged the SCCR to make increased efforts to convene a diplomatic
conference by the following assemblies and rapidly achieve the long-awaited international
treaty. To meet that objective, the Deputy Director General stated that the Secretariat was
prepared to make available all its resources. On the second major item before the SCCR,
exceptions and limitations, the Deputy Director General stated that thanks to the many studies
that the Committee had requested on all the aspects of that subject, there was a very precise
panorama of all the different legislations and regimes in Member States. She stated that the
Committee would have new presentations during that session, including Professor Daniel
Seng’s final version of the study on exceptions and limitations for educational and research
institutions, as well the status report by Professors Blake Reid and Caroline Ncube on the on
the rights for persons with other disabilities. The Deputy Director General indicated that there
had been two other studies in the past, one on exceptions and limitations for libraries and
archives, and the other on exceptions and limitations for museums. Together with the nine
other studies that had been carried out for the SCCR in previous years, that series of studies
was the broadest comparative study of exceptions and limitations that presently existed in the
world. The Deputy Director General stated that based on her conversations in the previous
weeks, what was a common objective was access to education, to knowledge and to culture.
The Deputy Director General wished to build on that consensus and to overcome the differing
views on the modalities. Together with the Member States, professionals and representatives
of Civil Society, she was committed to finding innovative solutions that were pragmatic and that
would benefit all the stakeholders, whether public or private. The Deputy Director General
Indicated that it was essential that the Committee met those challenges together, as that would
mean access for all. As there was a growing demand for including emerging issues on the
Agenda, there were two proposals that would be examined under the item "Other matters": a
proposal from GRULAC for Copyright Related to the Digital Environment and a proposal from
the Delegations of Senegal and the Republic of Congo to include the Resale Right on the
Committee's Agenda. On the following Friday morning, Professor Richardson would present on
the resale right, and that afternoon, would be the discussion on the GRULAC proposal. The
Deputy Director General indicated that the conversations on those proposals would not be
exhaustive and that the Committee would have to decide on what the follow-up to those two
proposals would be. In closing, the Deputy Director General wished the delegates very good
discussions in the course of that week, and reiterated that she remained committed to
contributing to the success of the Committee’s work.
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8.
The Chair thanked the Deputy Director General for her opening address and her
enthusiasm in encouraging the work of the Committee, as they worked to achieve concrete
results in the various items of the Agenda. The Chair acknowledged and thanked the ViceChair, and stated that what was proposed was for the Member States to continue to work on all
subjects of the draft Agenda. The Chair informed the delegations that discussions would be
based on all working documents considered by the Committee at the Thirty-Second Session of
the SCCR, as well as documents and proposals submitted for that session. For the schedule of
the work, the Chair announced that it was proposed to divide the meeting time equally between
the exceptions. The Chair requested the Secretariat to review the schedule for the week.
9.
The Secretariat thanked the Chair and introduced the Copyright Law Division, which it
stated, were there to assist the Committee. The Secretariat discussed the proposed schedule
and confirmed that it would announce the schedule for each day, as the meeting went along.
AGENDA ITEM 2: ADOPTION OF THE AGENDA OF THE THIRTY-THIRD SESSION
10. The Chair opened Agenda Item 2, adoption of the Agenda of the Thirty-Third Session of
the SCCR as included in Document SCCR/33/1 Prov. With no objections or comments, the
Committee adopted the Agenda.
AGENDA ITEM 3: ACCREDITATION OF NEW NON-GOVERNMENTAL ORGANIZATIONS
11. The Chair opened Agenda Item 3, Accreditation of new non-governmental organizations
(NGOs). The SCCR had received new requests for accreditation, which were contained in
Document SCCR/33/2, and were requests made by the African Library and Information
Associations and Institutions (AfLIA), the Canadian Federation of Library Associations (CFLA),
the European University Association (EUA), the Federacion de Musicos Asociados (FEMA) and
the National Library of Sweden (NLS). With no objections or comments from the floor, the
Committee approved the accreditations of the new NGOs.
AGENDA ITEM 4: ADOPTION OF THE REPORT OF THE THIRTY-FIRST SESSION OF THE
SCCR
12. The Chair moved to Agenda Item 4, the adoption of the report of the Thirty-Second
Session of the SCCR. As there were no comments, the Chair invited the delegations to send
written comments or corrections to the Secretariat, and invited the Committee to approve
document SCCR/32/5. The Committee approved document SCCR/32/5.
OPENING STATEMENTS
13.
The Chair invited Regional Coordinators to deliver their opening statements.
14. The Delegation of India, speaking on behalf of the Asia Pacific Group, expressed its
confidence in the Chair and thanked the WIPO Secretariat for its work. The Delegation
stressed the importance of the Committee in dealing with the protection of broadcasting
organizations, in dealing with the limitation and exceptions for libraries and archives and in
dealing with the exceptions and limitations for educational and research institutions for persons
with other disabilities. The Delegation indicated that those three issues were of great
importance to their group, and that in terms of the level of discussion on those issues since the
Twenty-Seventh Session of the SCCR, it would not be wrong to say that the SCCR was facing
difficulties, in an far as coming to an agreement, on how to proceed with some of those agenda
items. The Delegation believed that in order to further the Committee’s work, it had to refer to
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the work plan on those three issues, as discussed in the 2012 General Assembly guidance to
the SCCR. The Delegation indicated its belief that those issues had not received an equal level
of commitment by Member States. In the spirit of multilateralism, the Delegation fully supported
the proposed work program and reaffirmed its commitment to negotiating a mutually acceptable
outcome on all three issues before the Committee. The Delegation stated that based on the
mandate of the 2007 WIPO General Assembly, members of its group would like to see the
finalization of a balanced treaty, on the protection of broadcasting organizations, that protected
the signal-based approach for cablecasting and broadcasting organizations in the traditional
sense. The Delegation stated that exceptions and limitations were of critical importance to its
group. The copyright system should be balanced and should equally take into account
commercial interests in copyright and right holders, as well as other competing interests in
copyright, including the public’s interest in scientific, cultural and social progress and
competition. Exceptions and limitations had an important role to play in the attainment of the
right to education and access to knowledge. Actualization of which in many developing
countries was hampered due to lack of access to relevant educational and research material;
however, there was no denying the fact that some divergence on how exceptions and limitations
should be approached existed among Member States. It was unfortunate that absence of
adequate will to discuss and develop the two exceptions and limitations before that Committee
had resulted in a stalemate of its work. The Delegation hoped that all Member States would
engage constructively in that session so as to be able to develop a mature text. The Delegation
stated that it had taken note of the proposal submitted by GRULAC in the Committee’s ThirtyFirst Session, to discuss the current digital environment and copyright interface, and that
members of the Asia Pacific Group would make interventions in their national capacity under
that agenda item. As the same Committee which facilitated the Beijing Treaty and Marrakesh
Treaty, the Asia Pacific Group was optimistic that the noble intentions and right will, would pave
the path for the development of appropriate international instruments on all three issues soon.
The Group looked forward to productive results and tangible progress in that session.
15. The Delegation of Chile, speaking on behalf of the Group of Latin American and
Caribbean Countries (GRULAC), thanked the Chair and the Secretariat for organizing the
meeting. GRULAC supported the work of the Committee and further reiterated its readiness to
work constructively on the issues on the Agenda, for that meeting. For GRULAC, the work of
the SCCR was of the utmost importance and it supported continuing that work with a balanced
program that was inclusive of exceptions and limitations for libraries and archives, exceptions
and limitations for educational, teaching, and research institutions, broadcasting, and the
GRULAC proposal of analysis of copyright in the digital environment. GRULAC hoped to
balance the discussions of those issues that addressed the interests and priorities of all
Member States. The issue of exceptions and limitations had been promoted by GRULAC and
its Member States from the outset. In order to reach effective solutions with regard to problems
affecting libraries and archives around the world, GRULAC, in particular, supported an open
and frank discussion on limitations and exceptions for libraries and archives that did not
prejudge the nature of the outcome of the discussions. GRULAC was very interested in the
debate on proposals submitted by the Delegations of Brazil, Ecuador, Uruguay, India, and the
African Group. In order to promote work on that topic, GRULAC supported further discussions
based on the Chair's proposal. Furthermore, GRULAC looked forward to the discussion of
Document SCCR/33/4, submitted by the Delegation of Argentina. With regard to the limitations
and exceptions for educational and research institutions and people with other disabilities,
GRULAC looked forward to the continuation of Professor Daniel Seng's presentation as well as
discussion on the Chair's proposal. The Delegation was also grateful for Professor Reid's
preliminary presentation on other disabilities. GRULAC reiterated its willingness to continue
discussions on broadcasting organizations, with a view to update their protection following the
signal-based approach. The Delegation hoped to continue the discussions based on the text
proposed by the Chair. GRULAC was interested in considering the proposal submitted by the
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Delegations of Argentina, Colombia, and Mexico, contained in Document SCCR/33/5. The
Delegation hoped that progress would be achieved in the discussion, with a view to conclude
the work. GRULAC also hoped to continue discussions on the basis of Document SCCR/31/4,
proposed analysis of copyright related to the digital environment. GRULAC indicated that it
wished to propose a discussion on the new challenges arising from the use of protected
intellectual property works in the digital environment within Committee. The Delegation
welcomed the exchange of views amongst Member States on its proposal, and suggested that
in order to continue that subject, the Secretariat should be asked to study the progress made in
the past ten years in Member States’ National Copyright Legislation related to the digital
environment. With regard to the Marrakesh Treaty, GRULAC was pleased to underline its
importance. The Delegation stated that it continued to be committed to its application and
effective implementation, and informed the Committee that on October 18 and 19 2016, the
WIPO Subregional Workshop on the Effective Implementation of the Marrakesh Treaty was held
in the City of Buenos Aires, Argentina and was hosted by the Copyright Office of the Ministry of
Justice and Human Rights of Argentina, with the support of the Latin American Blind Union.
State entities from Chile, Paraguay, and Uruguay participated, as well as the Accessible Books
Consortium and International Federation of Library Associations, amongst others. The
workshop facilitated the exchange of best practices in the production and distribution of
accessible books among the countries represented, and analyzed a work plan of specific
measures in the implementation of the Marrakesh Treaty. The Delegation stated that it
appreciated the support provided by WIPO in the implementation of that activity and it looked
forward to the continued support and cooperation of WIPO in that very important issue for its
region. GRULAC announced that the regional project on Transparency, Accountability and
Governance (TAG) for Latin American countries would take place in El Salvador between
November 29 and 30. Through that activity, the Delegation hoped to contribute the national
experiences of the region, to the WIPO process.
16. The Delegation of Latvia, speaking on behalf of the Group of Central European and Baltic
States (CEBS) Group, expressed its confidence in the Chair and thanked the Secretariat for the
preparation of the meeting. The Delegation stated that it continued to support a treaty on
broadcasting organizations and that it was committed to the work of the Committee in that area.
The Delegation thanked the Chair for preparing Document SCCR/33/3, Revised Consolidated
Text on Definitions, Object of Protection, and Rights to be Granted, and stated that it looked
forward to constructive deliberations on the basis of that document. The Delegation reiterated
its position that as the discussions on that treaty had been ongoing in that Committee for many
years, the challenges faced by the broadcasting organizations, and the issues to be addressed
by the contemplated treaty, had evolved significantly. The Delegation stated that although it
was ready to engage in the discussions ahead in a positive and constructive manner, that it
would continue to insist on creating a treaty that would take into account the present reality of
different types of broadcastings made possible by rapidly evolving technologies and changes in
the habits of consumers. In order to effectively protect broadcasting organizations, the
Delegation stated that the outcome of the Committee’s deliberations had to integrate those
aforementioned elements. The Delegation stated that it continued to recognize the importance
of the limitations and exceptions for libraries and archives, as well as for educational and
research institutions, and persons with other disabilities, as they played an important role in
economic, social, and cultural development. The Delegation stated that it was looking forward
to the presentation by Professor Seng and it took note of the new proposals on a treaty on the
protection of the broadcasting organizations put forward by the Delegations of Argentina,
Colombia, and Mexico, and on limitations and exceptions, put forward by the Delegation of
Argentina. The Delegation stated that it was ready to engage in discussions on the two
proposals in Agenda Item 8.
17. The Delegation of Nigeria, speaking on behalf of the African Group, thanked the Chair and
the Secretariat and reiterated its readiness to support the work of the Committee. The
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Delegation stated that even though several years of successive SCCR sessions had come and
gone, there had been no breakthrough in the Committee's negotiations on its three main
Agenda topics: a treaty for the protection of broadcasting and cablecasting organizations from
piracy, exceptions and limitations for library archives, and limitations and exceptions for
educational and research institutions and for persons with other disabilities. The Delegation
stated that it was necessary to have a clear vision and path for the Committee's deliberations on
broadcasting and cablecasting organizations, and it reiterated its support for the early
convening of diplomatic conference to protect signal piracy. In that context, the Delegation
supported the overarching objective as indicated in Document SCCR/33/5 and as proposed by
the Delegations of Argentina, Colombia, and Mexico, to expedite the Committee's work and
convene a diplomatic conference no later than 2018. The Delegation stated that it was time to
determine a path on the exceptions and limitations agenda of the SCCR. The Delegation
expressed that the absence of a time frame for the Committee’s discussions was not the most
constructive path for its work. To facilitate understanding and accelerate the Committee’s work,
the Delegation supported the Chair’s idea to hold regional and cross-regional meetings on the
exceptions and limitations agenda of the SCCR. The Delegation expressed that the goal to
breach the global knowledge gap was fundamental to the adoption of Sustainable Development
Goal (SDG) 4, which sought to achieve lifelong learning opportunities for all. The Delegation
stated that no one could question the logical chain that access to knowledge developed the
individual who, in turn, developed his immediate environment, and further out, the global
environment. The Delegation expressed its hope that all Member States and other participants
would feel the burden of responsibility placed upon all stakeholders and the full membership of
the United Nations to vigorously pursue attainment of the SDGs. For the SCCR, its contribution
to that objective would be in the progressive conclusion of the Committee's current discussion
on exceptions and limitations, in a manner that purposefully facilitated access to knowledge and
information for underserved persons, and in line with the 2012 General Assembly decision on
those issues. The Delegation stated that it looked forward to engaging constructively in the
exceptions and limitations discussion, and looked forward to the presentations prepared for the
Committee including on the study of copyright limitations and exceptional limitations activities of
all 189 Member States of WIPO, the presentation by Professors Reid and Ncube on the scoping
study for persons with other disabilities and the presentation on resale rights. The Delegation
stated that it would join the discussion on those issues constructively, and that it looked forward
to considering the new issues under Agenda Item 8, royalty retail rights by the Delegation of the
Republic of Congo and Senegal and the other by GRULAC.
18. The Delegation of Turkey, speaking on behalf of Group B, thanked the Chair and the
Secretariat for its work, and welcomed the Deputy Director General to the SCCR family. The
Delegation noted that the Committee’s meeting came after the conclusion of the WIPO's
General Assemblies, which instructed the SCCR to continue its work. The Delegation
acknowledged that since the Committee’s last meeting, the Marrakesh Treaty had come into
force, and that that was a significant and outstanding instrument of the SCCR. The Delegation
stated that it continued to attach importance to the negotiation of a treaty for the protection of
broadcasting organizations. To maintain its relevance, the Delegation stated that WIPO had to
continue to hear the voices of the real world, and respond to the developing demands in various
fields. The Delegation observed that no one questioned the significant economic value of
broadcasting and as such, Member States had to find a relevant solution that would fit in the
current environment. It was only Member States that could ultimately agree upon practical and
meaningful solutions and maintain the relevancy of that Committee and the organization. The
Delegation thanked the Chair for the proposal highlighting updated broadcasting text on
definitions, objects of protection, and the rights to be granted. The Delegation highlighted that
previous Committee discussions had helped it better understand the various perspectives and
technological issues, that needed to be addressed. The Delegation took note of the proposal by
the Delegations of Argentina, Colombia, and Mexico and looked forward to discussing it at the
following session. On limitations and exceptions, the Delegation hoped that the Committee
could find a consensual basis for further work. The Delegation underlined its desire for the
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Committee to consider seriously the objectives and principles as proposed by the Delegation of
the United States of America in SCCR/26/8 and SCCR/ 27/8, which it stated provided a
common normative framework where no consensus existed. The Delegation noted the
proposal by the Delegation of Argentina, with regard to limitations and exceptions for libraries
and archives and limitations and exceptions for the educational and research institutions and for
persons with other disabilities.
19. The Delegation of China thanked the Chair and Secretariat for its hard work and
acknowledged the importance of the SCCR as a specialized Committee in WIPO. The
Delegation stated that the agenda items up for discussion, the protection of broadcasting
organizations, limitations and exceptions for libraries and archives, limitations and exceptions
for educational and research institutions and for persons with other disabilities, were still major
issues that needed the attention of all Member States. The Delegation stated that the lack of
consensus in previous sessions was perhaps due to the different realities among Member
States and that as a Delegation, it would continue to participate actively in the discussion of the
agenda items. The Delegation stated its hope that different delegations, under the guidance of
the Chair, would undertake substantial discussions in the spirit of cooperation, inclusion, mutual
understanding, and in a flexible and pragmatic way. The Delegation highlighted the entry into
force of the Marrakesh Treaty and appealed to Member States to pay also attention to the
Beijing Treaty, which required 15 more ratifications for its entry into force. The Delegation
stated its hope that Member States would provide the same support to the Beijing Treaty as
they had provided to the Marrakesh Treaty.
20. The Delegation of the European Union and its Member States thanked the Chair and
Secretariat for the preparation of that session and welcomed the Deputy Director General. The
Delegation stated that it had been actively involved in the discussions on a treaty for the
protection of broadcasting organizations. The Delegation stated that it was ready to continue to
work constructively and that the treaty that the Committee was working to advance, should
respond to both the current and future needs and interests of broadcasting organizations, and
should reflect the development of technologies used by broadcasting organizations. During that
session, the Delegation looked forward to an in-depth discussion on Document SCCR/33/3, the
Revised Consolidated Text on Definitions, Object of Protection, and Rights to be Granted. The
Delegation expressed that what was needed was a broad consensus as to the extent of the
protection to be granted, so that the treaty could provide broadcasting organizations with
adequate and effective protection. Considerable efforts had been made during previous
sessions in order to build consensus on the main issues of a treaty, and that consensus should
allow the Committee to agree on a meaningful text that reflected the technological
developments that had occurred in the 21st Century. The Delegation reiterated its commitment
to progressing towards the conclusion of a meaningful treaty. The Delegation stated that it
would continue to contribute constructively to the discussions on exceptions and limitations.
The Delegation stated that those discussions would be most useful if they aimed at a more
thorough understanding of the issues at stake. At the same time, the discussions could also
look at possible solutions and flexibilities among those already available under the framework of
the existing international treaties. The Delegation expressed that useful work could be done in
that Committee to provide guidance regarding the manner in which the international treaties
were implemented in national laws. The Delegation stated its belief that the existing
international copyright framework already empowered WIPO Member States to introduce,
maintain, and update limitations and exceptions in their national legislation that could
meaningfully respond to their local needs and traditions, while continuing to ensure that
copyright was an incentive and a reward to creativity. The Delegation did not therefore see a
need for any new and additional legally binding instruments in that area.
21. The Chair stated that as that SCCR meeting was the first since the Marrakesh Treaty
entered into force on September 30, 2016, it was a moment to congratulate the Committee.
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The Chair invited the representative of the beneficiaries of the Marrakesh Treaty, the World
Blind Union, to take the floor.
22. The Representative of the World Blind Union (WBU) thanked the Chair for his central role
in concluding the negotiations at the Diplomatic Conference in June 2013. The Representative
stated that September 30, 2016 was an amazing day for millions of people around the world as
the Marrakesh Treaty finally became operational. The Representative stated that although in
the years to come, the Committee had an ongoing small role with the Marrakesh Treaty Council,
because the following step was ratification, there was still a lot of work to be done, which went
directly into the hands of the Member States and their copyright divisions and parliaments. The
Representative noted that 80 Member States signed the treaty within the first 12 months, but
only 25 had so far taken forward that intention and ratified it. What was important now that the
Treaty was operational was to remember that only the print disabled of those 25 countries could
actually have the benefit of the provisions of the Treaty. Many Member States sitting would be
cross-border countries which would mean the blind and the visually impaired and print disabled
in neighboring countries benefiting with books in accessible formats, but those communities in
some countries, not being able to take up that benefit. The Representative urged all countries
to take very seriously the urgent need to ratify and to domesticate that Treaty into their copyright
law. The Representative stated that the World Blind Union had commissioned a very important
guide to the Marrakesh Treaty, aimed specifically to assist in the domestication of the Treaty
and aimed at supporting the copyright and intellectual property right divisions of government
and the parliamentarians in the understanding of the domestication process. The
Representative stated that treaty was specifically designed to break down barriers, as such the
Oxford Community Press would be publishing that guide in the beginning of the following
February.
23. The Chair thanked the Representative of WBU for its statement. The Chair stated that the
Marrakesh Treaty did not end with its ratification, but that Member States had to build the
infrastructure and the institutions that would actualize the Treaty’s benefits to the beneficiaries.
AGENDA ITEM 5: PROTECTION OF BROADCASTING ORGANIZATIONS
24. The Chair opened Agenda Item 5 on the protection of broadcasting organizations. The
Chair reminded the Committee of the mandate, which had been received during SCCR 32, to
consider the textual proposals and clarifications made during that session with respect to
definitions, object of projection and rights to be granted, with a view to integrate them in
document SCCR/32/3. The Chair stated that document SCCR/33/3, titled, Revised
Consolidated Text on Definitions, Object of Protection, and Rights to be Granted, was now
before the Committee for consideration. The Chair stated that it would introduce the document
after regional coordinators had given their statements on that agenda item. The Chair
introduced Document SCCR/33/5, Note on the Draft Treaty to Protect Broadcasting
Organizations, submitted by the Delegations of Argentina, Colombia, and Mexico for the
Committee’s consideration.
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25. The Delegation of Latvia, speaking on behalf of CEBS, reiterated the great importance it
attached to concluding a treaty on the protection of broadcasting organizations. The Delegation
was of the view that it was crucial to find an agreement on the international legal instrument that
would not only protect broadcasting organizations in the traditional sense, but would take into
account the ever-rapidly evolving digital environment. The Delegation stated that a treaty
protecting only a limited scope of transmissions would not sufficiently serve the interests of the
broadcasters all around the world. The Delegation expressed that as the world was witnessing
a trend where almost any television program could be watched through the Internet or on
demand, all transmissions of broadcasting organizations over any other medium should be
equally protected. The Delegation welcomed the Revised Consolidated Text on Definitions,
Object of Protection, and Rights to be Granted, as the text illustrated the progress achieved
during the previous sessions. The Delegation stated that it was looking forward to building the
Committee’s discussions on the latest revision of the text, which it hoped would advance the
Committee’s work towards an effective legal instrument. The Delegation urged all Member
States to actively engage in discussions, with a view to finalize a treaty that had been
extensively discussed for many years.
26. The Delegation of Chile, speaking on behalf of GRULAC, reiterated its determination to
continue discussing radio broadcasting organizations, so as to achieve a signal-based approach
to protection. The Delegation stated that it hoped to continue the discussions on the basis of
the text submitted by the Chair, SCCR/33/3. The Delegation stated its interest in examining
document SCCR/33/5, the proposal submitted by the Delegations of Argentina, Colombia, and
Mexico.
27. The Delegation of Turkey, speaking on behalf of Group B, reiterated the importance of
updating the international legal framework for the effective protection of broadcasting
organizations in the 21st Century. The Delegation stated that the adoption of the corporate
framework should be done in a timely manner, addressing the technological issues and realities
that broadcasting organizations faced in the current world. With that in mind, for the sake of the
facilitation of negotiation which the committee was tasked with, the Committee had to deepen its
understanding of the unresolved legal issues. For that purpose, the continuation of discussions
using the Chair's Revised Consolidated Text, as a starting point, was a pragmatic and an
effective way forward. The Delegation expressed that it should be kept in mind that the critical
element was the technical understanding and the knowledge of the practical issues, and the
challenges, faced broadcasting organizations in the current world, and how that could be the
basis of a treaty text. Therefore, due consideration had to be paid to that fact presently and in
the future sessions of that Committee. The Delegation noted the proposal by the Delegations of
Argentina, Colombia, and Mexico, and looked forward to discussing it at the following session.
28. The Delegation of Nigeria, speaking on behalf of the Africa Group, reiterated its support
for a signal-based protection of broadcasting and cablecasting organizations. The Delegation
stated that it looked forward to holding discussions based on the Chair’s text on definitions of
subject of protection and rights to be granted, including the new documents that had been
submitted by the Delegations of Argentina, Mexico, and Colombia. The Delegation hoped that
that Session of the SCCR would determine a time frame for the conclusion of that agenda item
and the convening of a diplomatic conference to adopt a treaty for the protection of
broadcasting and cablecasting organizations.
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29. The Delegation of India, speaking on behalf of the Asia Pacific Group, stated that it
supported the development of an international treaty, for the protection of broadcasting
organizations, as per the 2007 General Assembly mandate, which was agreed upon during the
Twenty-Second Session of the SCCR and which was later reiterated in the Forty-First General
Assembly in 2012. The Delegation supported attempts to reach agreement based on the
signal-based approach for broadcasting and cablecasting organizations in the traditional sense.
The Delegation expressed that it was committed to working to achieve a balanced text,
cognizant of interests and priorities of all stakeholders. The Delegation believed that adhering
to the original amendment, without introducing any new layers of protection, would facilitate
achieving the desired balance between the rights and the responsibilities of the broadcasting
organizations. The Delegation stated that it would continue to participate in all consultations,
with a view to finalize a treaty on the protection of broadcasting organizations in the traditional
sense, by reaching consensus on outstanding issues and taking into consideration concerns of
all Member States
30. The Delegation of China thanked the Chair for the consolidated text, which was based on
discussions had by Member States and NGO’s at the Thirty-Second Session. The Delegation
stated that with the Chair’s guidance, and with effort from all Member States, the Committee
could achieve consensus. The Delegation stated that as it was very necessary to have an
international treaty that provided protection to broadcasting organizations, it was pleased to see
that most of the Member States thought it very necessary to have an international treaty in that
regard. With regard to the scope of protection, object of protection, and other areas, the
Delegation stated that the Committee had already achieved a consensus. The Delegation
welcomed the proposal submitted by the Delegations of Argentina, Colombia, and Mexico, and
reiterated its willingness to cooperate with the Chair and Secretariat, to have a full discussion on
relevant issues and on SCCR/33/3. The Delegation stated that the Committee should seek for
a satisfactory solution that would lead to a legally binding international instrument.
31. The Delegation of the European Union and its Member States stated that a treaty on
protecting broadcasting organizations was a high priority for the European Union and its
Member States. The Delegation was strongly committed to advancing work on the various
issues identified in previous committee sessions. The Delegation stated that it looked forward
to further progress on the basis of the Revised Consolidated Text on Definitions, Object of
Protection, and Rights to be Granted which the Chair had prepared for that session. The
Delegation stated that it had a number of technical and substantive comments on the text, and
that it was ready for in-depth discussions on the issues set therein. The Delegation noted with
interest the paper on a draft treaty to protect broadcasting organizations presented by the
Delegations of Argentina, Colombia, and Mexico. With regard to suggestions for working
methods contained in that paper, the European Union and its Member States did not believe
that the pace of convergence could be forced by convening at that stage, additional meetings.
The Delegation was prepared to continue to follow an open, constructive, and flexible approach
that focused the discussion at that stage on the main elements of a treaty and on those aspects
that seemed to indicate more convergence among delegations. The Delegation stated that the
Committee’s work should result in a meaningful treaty that reflected the technological
developments that had occurred in the 21st Century. In particular, it believed that transmissions
of traditional broadcasting organizations over computer networks, such as simultaneous
transmissions, warrant international protection from acts of piracy. The Delegation expressed
that as it had stated in previous sessions of that Committee, it attached great importance to the
adequate catalog of rights which would allow the necessary protection for the broadcasting
organizations, against acts of piracy, whether they occurred simultaneously with the protected
transmissions or after those transmissions had taken place. The Delegation stated that what
was generally needed was a broad consensus as to the extent of the protection to be granted,
so that a future treaty could provide broadcasting organizations evolving in an increasingly
complex technological world, with adequate and effective protection. The Delegation hoped
SCCR/33/7
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that the considerable efforts that had been made during previous sessions would allow the
Committee to find a solution on the main elements of a treaty.
32. The Delegation of Argentina thanked the Chair for its guidance and the Secretariat for
organizing that session. The Delegation supported the statement made by the Delegation of
Chile, on behalf of GRULAC. The Delegation stated that it attached a high priority to the
protection of broadcasting organizations, and that it was grateful to the Delegations of Colombia
and Mexico for cosponsoring document SCCR 33/5. The discussions on the updating of
broadcasting organizations started in 1998 in that Committee, and although there were central
pending issues, important progress had been made. In resolving those outstanding issues, it
was essential to take into account technological change which had taken place in recent years
and which had affected the way in which broadcasting organizations worked. Only a treaty
would provide proper protection to broadcasting organizations. The Delegation stated that it
was essential that efforts were made to streamline the work so as to have a basic proposal on a
treaty for the protection of broadcasting organizations and to convene a diplomatic conference
by spring 2018. The Delegation thanked the Chair for preparing document SCCR/33/3.
33. The Delegation of Nigeria aligned itself with the opening statement made by the African
Group and its statement on Agenda Item 5. The Delegation thanked the Chair, the Secretariat
and welcomed the Deputy Director General. The Delegation noted the entry into force of the
Marrakesh Treaty, a positive development in WIPO since the Thirty-Second Session of that
Committee. The Delegation noted that the record time of the Marrakesh Treaty ratification
process, was indicative of what the global corporate community could achieve through that
Committee, given the rights among Member States and all stakeholders. The Delegation noted
that it was already advancing the process of the Marrakesh treaty. The Delegation expressed
concern over the inability of the Committee to progress discussion on the protection of
broadcasting organizations towards the fair implementation of a diplomatic conference. For four
years running, the Committee had not been able to make any concrete recommendation on the
matter to the General Assembly. There was, indeed, need for Member States to show greater
commitment and political will to engage more positively in the discussion of that agenda item, to
develop an international treaty to update the protection of broadcasting and cablecasting
organizations in the traditional sense, in line with the mandates of the 2007 General Assembly.
The Delegation looked forward to the discussion on document SCCR/33/3, which took into
account textual proposals and clarifications made during the Thirty-Second Session by
Delegations. The Delegation stated that it supported the call for an adoption of a definite work
plan by the Committee with respect to that agenda item and with a view to achieving a
proximate date for a diplomatic conference.
34. The Delegation of the Russian Federation encouraged the Committee to speed up its
work, as everyone, including the rights holders, was waiting for a new treaty. The Delegation
stated that as the Committee had been working on that text for 16 years, unfortunately, many
things were already out of date. The Delegation expressed that the Committee had to agree on
a treaty that would take into account the new technologies developing in society. The
Committee had a unique opportunity to adopt a treaty that would satisfy all parties and
stakeholders in society. If the Committee did not include in the new treaty those new
information technologies, then it would be adopting a treaty that had long become obsolete.
Nonetheless, bearing in mind the importance of that treaty for all countries, the Russian
Federation stated that for the purpose of achieving a common goal, it was prepared to search
for a compromised proposal. The Delegation stated that the document was useful in speeding
up the work of the Committee and hoped that by 2018, the Committee would have achieved a
compromise that would lead to the convening of a diplomatic conference to adopt a new treaty
on broadcasting organizations.
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35. The Delegation of Iran (Islamic Republic of) congratulated the Chairman and thanked the
Secretariat for its hard work. The Delegation aligned it’s self with the statement delivered by the
Delegation of India, speaking on behalf of the Asia Pacific Group. The Delegation thanked the
Chair for preparing the Revised Consolidated Text on Definitions, Object of Protection, and
Rights to be Granted which it believed offered the Committee a good opportunity to make
progress. The Delegation stated that in accordance with the 2007 General Assembly mandate
towards developing a legal framework for the protection broadcasting organizations against
signal piracy, the subject of signal-based protection of broadcasting organizations in the
traditional sense, was of the high importance. The Delegation argued that in order to balance
the treaty for the benefit of right holders, broadcasters, and society at large, the Committee
should not restrict society's free access to knowledge and information. In that context, there
should be a balance between the interest of creators, the interests of the public, and the
interests of the broadcaster. The Delegation stated that the Committee should avoid
guaranteeing additional rights that would subject additional costs to the public and affect access
to broadcasted content.
36. The Delegation of Japan thanked the Secretariat for its efforts towards the organization of
that session and thanked the Chair for the preparation of document SCCR/33/3. The
Delegation stated that during the previous Committee session, the Committee had a fruitful
discussion on substantive issues, based on the consolidated text prepared by the Chair, and
had made some progress toward achieving a common understanding on those issues. The
Delegation expressed that since the Committee was hoping for the adoption of a broadcasting
treaty at the earliest opportunity, it hoped that further progress would be made during that
session, in order to convene a diplomatic conference that would lead to the adoption of a treaty.
37. The Delegation of Chile stated that with respect to broadcasting organizations, Chile had
recently experienced a change in its telecommunications authorities. The Delegation stated
that Chile was evaluating the implications, at the national and international level, of the matters
under discussion in that Committee. The Delegation stated that it maintained the same position
it had expressed in previous sessions on that item, and that it would closely follow the
discussions.
38. The Delegation of the United States of America thanked the Chair and the Secretariat for
its hard work and welcomed the Deputy Director General. The Delegation stated that it had
come prepared to work on the Chair’s Revised Consolidated Text on Definitions, Object of
Protection, and Rights to be Granted, a document that looked like a comprehensive framework
for discussion. A few topics that had been mentioned at the last session of the SCCR, and
invited the attention of the Chair and other Delegations, to take a look at those topics as well.
Time permitting, it would like to discuss those topics on the chart that had been provided by the
Chair at the previous session on beneficiaries of protection, the term of protection, technological
protection measures, and rights management information. It stated that in the post-election
cycle, as it moved through the orderly process of transition from one administration to another, it
would provide an analysis of the broadcasters treaty agenda item, taking into account, as
comprehensive it could, the traditions in legal conditions around the world and applicable laws
at the national level with respect to broadcasting protection, the rapid and continuing changes in
broadcasting technology, and, of course, the viewpoints of all stakeholders that were implicated
in that treaty initiative.
39. The Delegation of South Africa aligned itself to the statement made by the Delegation of
Nigeria. The Delegation expressed that like many other countries in that room, it was keen to
see tangible progress in the Committee, in line with the 2007 mandate to address signal piracy.
The Delegation stated that I was cognizant of the delicate balance that needed to be maintained
to avoid granting additional rights but that it was encouraged by progress that had been made in
bridging gaps.
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40. The Delegation of Indonesia thanked the Chair for preparing document SCCR/33/3, and
expressed its stand that discussions and any decisions on the protection of broadcasting
organizations should be based on the 2007 General Assembly mandate to provide protection on
the signal-based approach for cablecasting and broadcasting organizations in the traditional
sense. It was ready to engage constructively and was ready to reach a common understanding
on the key aspects in the protection of broadcasting organizations. Traditional broadcasting
remained a central mechanism for access to information, knowledge, and culture, particularly in
developing countries and nations like Indonesia. It had a lot of remote islands, and remote
areas that heavily relied on traditional broadcasting for access to information. Therefore, from a
development prospective, the protection of broadcasting organizations should not create
additional costs for the public and affect broadcasting content in developing countries. The
intellectual property rights of broadcast were a developmental issue that required careful
balancing.
41. The Chair stated that document SCCR/33/3 was a revised consolidated text that was
inclusive of Member State observations and discussions from previous documents. The Chair
stated that the document maintained the three sections that had been in the structure from the
beginning. The first section was a definitions section, which contained the definitions of
programme current signal, the definition of programme, the definition of broadcasting, the
definition of broadcasting organization, the definition of transmission, the definition of near
transmission, a title for the definition of deferred retransmission, and the definition of prebroadcasting signal . The two last definitions were in brackets because they’re inclusion was
under ongoing discussion. The first definition, which was the programme current signal, was
the object of protection of the treaty. Following the signal-based approach that was mentioned
in the General Assembly mandate, the Committee started to use the term "signal," which
specifically referred to the signal that carried programmes and that had specific content. It was
important that the Committee agree that that would be the main object of protection, the
programme current signal. On the second definition of "programme," since the Committee had
opted for the definition of "programme" current signal as the object of protection and which
appeared to have its own definition of "programme," thus there were no alternatives in the
definition of "programme" that were reflected in the document. On the third definition,
"broadcasting," there were two alternatives. Alternative A dealt with the traditional definition of
"broadcasting," which, with some clarifications, took into account similar definitions that were
used in previous international instruments, to mainly mean the transmission made by wireless
means. Since there was some concern not to change the traditional definition of
"broadcasting," expressed by different delegations, there appeared the need in that alternative
to have a separate definition for cablecasting, including wire transmission. Alternative B dealt
with having an inclusive definition of "broadcasting," either by wireless means or any other
means for reception by the public, of a programme carrying signal. The advantage of that new
technologically neutral definition of "broadcasting" was expressed by some delegations in that
broadcasters use different techniques for transmission and it was not limited to the so-called
traditional means or wireless means. In that regard, with a more inclusive definition of
"broadcasting," there would not be a need to make clarifications anytime
"broadcasting/cablecasting" was used. In that definition the Committee had to find a way to
deal with the legitimate concerns expressed by those delegations who wanted to clarify the
treatment that was constitutionally or by national regulatory made for cablecasting. The more
inclusive definition of "broadcasting" would provide the opportunity to clarify those specific
concerns. The definition of "broadcasting organization," was based on Member State opinions
and highlighted in it was the responsibility for broadcasting, including assembling and
scheduling the programme carried on the signal. The Chair stated that there remained to be
added, a clarification that the topic of transmission by networks did not fall under the definition
of a broadcasting organization. There was a proposal of an agreed statement which stated that
for the purpose of that treaty, the definition of "broadcasting organization" did not affect the
contracted parties' national regulatory framework for broadcasting activities. The definition of
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"retransmission," included two alternatives. Alternative A of "retransmission" was a broader
scope of the definition and it referred to transmission by any means or any medium. Alternative
B of "retransmission was a more restrictive definition of "retransmission," limiting it to the
simultaneous and near simultaneous transmission. The definition selected for retransmission
would have an implication on the rest of the treaty, but it does not impose what is there is going
to be covered by the whole provisions of the Treaty. On the definition of "near simultaneous
transmissions," it was necessary to define a transmission that was delayed, only to the extent
necessary to accommodate time differences or to facilitate a technical transmission of the
programme-carrying signal. The Committee did not have a definition for "deferred
retransmission," and that it was waiting for suggestions, which would have an impact on what
the Committee was discussing. The definition of "deferred retransmission" should not be what
is already encompassed in the definition of "near simultaneous transmissions" as there was a
delay in that definition. The delay was necessary to accommodate time difference or to
facilitate technical transmission. As such, the "deferred retransmission" should cover something
that is deferred for sure but not for those reasons expressed in the previous definition. The
definition of “preferred cut signal" was a combination of the common elements of the previous
contributions on that regard. The second section of the treaty, the object of protection, had not
changed but had some alternatives in some of the provisions. The protection on the treaty
extended to the programme-carrying signals. The clarification that the provision of the treaty
would not provide any protection in respect of mere retransmissions, and that was very
important because at some point there was a confusion regarding the issue of cable distribution
which is an activity that does not involve editorial activity. The clarification helped with the
understanding that there would be no protection with respect to mere retransmissions. There
were two alternatives in the third paragraph of object for protection. Alternative A stated that
there would be protection for simultaneous and near simultaneous transmissions. Alternative B,
extended the scope of protection, not only for simultaneous or near simultaneous transmissions,
but also to deferred transmissions including the transmission that allowed members of the
public to access it from a place and at a time individually chosen by them. Since there was an
extension of the scope of protection in Alternative B, there was also a possibility to limit such
protection, giving flexibility to those jurisdictions who have not decided to limit deferred
retransmissions. In the third section of the treaty, rights to be granted, there were alternatives in
both paragraphs. Alternative A gave the right to authorize or prohibit the retransmissions that is
whatever retransmissions were covered in the second section. The first proposal in that section
gave the broadcasting organizations the right to authorize or prohibit those kinds of
retransmissions, and that alternative did not include the right to authorize or prohibit the making
available to the public of the broadcast. Alternative B limited the set of rights to the right of
prohibit, which it highlighted was the main difference between Alternative A and B. Alternative
A was the right to authorize or prohibit, whilst Alternative B was the right to prohibit in relation to
the protection of pre-broadcast. Alternative A gave the right to prohibit the unauthorized
transmission of their pre-broadcast signal, while the Alternative B suggested a general provision
stating that broadcasting organizations should enjoy adequate and effective protection for their
pre-broadcast signals.
42. The Delegation of Argentina stated that it was essential that the future treaty be suited to
the new technologies. The Delegation expressed that cable transmissions, deferred
transmissions and those transmissions that broadcasting organizations did over the internet,
had to be included. That meant making available the transmissions so that the public could
have access to them at a time and in a place that they chose. Regarding the definitions of
object of protection and rights to be granted contained in SCCR/33/3, the Delegation stated that
in the definition of broadcasting it preferred Alternative B because it was technologically neutral
and included cablecasting. The Delegation stated that in its document, the last sentence in
square brackets had to be deleted, and in response the concerns expressed by a number of
delegations, was open to hearing some suggestions. The Delegation stated that it welcomed
the agreed statement on the definition of broadcasting organization. Regarding the definition of
retransmission, it supported Alternative A, which included simultaneous, near simultaneous or
SCCR/33/7
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deferred retransmissions. And regarding the object of protection, the Delegation was in favor of
Alternative B providing it included deferred transmission, meaning transmission made in such a
way that members of the public may access it from a place and at the time individually chosen
by them. On "rights to be granted," the Delegation was in favor of Alternative A, which
authorized or prohibited. The Delegation stated that if the Committee would progress as
planned, it was also open to discussing other outstanding issues, such as the ones expressed
by the Delegation of the United States of America. The Delegation stated that the Committee
should make progress on exceptions and limitations towards a future treaty as that will offer a
solution to concerns expressed by Delegations such as Indonesia and Iran over access to
education and information.
43. The Chair thanked the Delegation of Argentina for its statement. The Chair stated that, in
the previous session, it had prepared a chart titled "other issues," on which were options
proposed in previous submissions by different delegations. The Chair opened the floor for
comments on the Revised Consolidated Text on Definitions, Object of Protection, and Rights to
be Granted and on the document submitted by the Delegations of Argentina, Colombia, and
Mexico.
44. The Delegation of Iran (Islamic Republic of) stated that concerning the Revised
Consolidated Text on Definitions, Object of Protection, and Rights to be Granted, on the
definition of broadcasting, the Delegation supported Alternative A, which consisted of two
different paragraphs defining broadcasting and cablecasting. The Delegation stated that
Alternative B, which included the expression "or any other means" was a vague and undefined
option. The Delegation expressed its preference that the possible treaty be restricted to existing
technologies and refrain from establishing some regulation concerning future and unpredictable
technologies. On "the right to be granted/protection” the Delegation was of the view that
Alternative B was the more appropriate option.
45. The Delegation of the European Union and its Member States stated that it had a number
of comments and questions on the Revised Consolidated Text on Definitions, Object of
Protection, and Rights to be Granted, and on the document proposed by the Delegations
Argentina, Colombia and Mexico of which it read with great interest. On the proposal by the
Delegations Argentina, Colombia and Mexico stated that it had a number of questions and
comments on Paragraph 4 second subparagraph which referred to the fact that "deferred
retransmissions may include extra material on news, additional interviews," on "and the latter
should apply regarding whether the transmissions are closely related to broadcasting or cable
broadcasting by a broadcasting organization," and further on "that deferred retransmission
should be referred as" basically an on-demand transmission. The Delegation stated that there
were a number of issues regarding the object of protection. In the object of protection, the
Delegation stated that there were various transmissions that were protected and that needed to
be protected. The Delegation stated that Paragraph 1 of the working document, on object of
protection, set the minimum protection, referred to as protection of programme-carrying signals.
As the discussion was on traditional broadcasts, the Delegation stated that in reality, that should
be protection of broadcasts, which was based on the definition of broadcasting. In Paragraph 3,
object of protection, there were further levels of protection. In Alternative A, there was
protection of simultaneous and near simultaneous transmissions, while in Alternative B, there
was simultaneous, near simultaneous and deferred transmissions. The Delegation stated that it
was important either in the definition of simultaneous, near simultaneous or deferred to indicate
that those were simultaneous, near simultaneous and deferred transmissions of broadcasts.
The Delegation stated that in terms of protection for broadcasts, there was protection for
simultaneous, near simultaneous and deferred transmissions for broadcast organizations'
broadcasts. If the definition of deferred transmission proposed by the Delegations of Argentina,
Colombia and Mexico, included on-demand transmissions, then the link between those
transmissions and the original broadcast transmissions would be clear. The Delegation
expressed that as long as the correct elements were there, that it was flexible with the section in
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the document that presented alternatives for broadcasting and cablecasting or broadcasting
alone. Following the statement of the Delegation of Iran (Islamic Republic of) the Delegation
expressed that in Alternative B, where there was broadcasting, it would be clearer to say that
broadcasting means the transmission either, by wire, or by wireless means, rather than "by any
mean." In order to have definitions that distinguished traditional broadcasting from other forms
of protected transmissions, something that was important to protect in that treaty, it was
important that those additional transmissions of computer networks, did not constitute
broadcasting. The Delegation stated that it wanted to protect computer network transmissions
through provisions in the object of protection. In the broadcasting organization definition, where
it referred to programming, it should refer to programmes because that was the defined term.
The Delegation stated that that should read assembling and scheduling of programme-carrying
signal. The Delegation expressed that the addition that was in brackets was not needed
because that clarification already existed in the broadcasting. The Delegation stated that it
would like to better understand the proposed agreed statement on national regulatory
framework, and what exactly would be the intended effect of such a statement. For the
definitions of retransmission, the Delegation stated that it had a preference for Alternative A but
that it was open as long as both simultaneous and near simultaneous and deferred
retransmissions were then subject to the rights granted in the previous section. Wherever
"deferred retransmission" was included in the definition of retransmission or whether it was a
separate definition the both had to be covered in the section on the rights granted. The
Delegation stated that in the definition of retransmission, it would be clearer to indicate that it
was a transmission for the reception of the public by any means of a broadcast rather than the
original broadcasting organization. The Delegation suggested that in both options of the
definition of retransmission, to replace "programme-carrying signal" with "broadcast" and
“someone authorized by it” to "an entity acting on its behalf". The Delegation stated that for the
possible definition of deferred transmission, it should be transmission and not retransmission
without any limits in it being delayed in time. The Delegation stated that that definition could
also include a transmission made in such a way that members of the public may access it from
a place and at a time individually chosen by them. As such, the definition of deferred
transmission would include transmissions delayed in time and also on demand transmissions.
The Delegation stated that as indicated in Paragraph 1 of object of protection, programmecarrying signals should be replaced by broadcasts so as to ensure that the protection granted
extended only to broadcasts and pre-broadcast signals. The Delegation suggested that
Paragraph 3, in both Alternative A, and Alternative B, it should be simultaneous or near
simultaneous transmissions of their broadcasts. The Delegation stated that based on what was
raised by the Delegations of Argentina, Colombia and Mexico there were two kinds of
on-demand transmissions which were related to broadcast. One is an on-demand transmission
of a broadcast and the second is an on demand transmission of certain material which had not
been previously broadcast but was closely linked to the broadcast material. For consistency
with the rights, the Delegation stated that at the end of the paragraph starting with "the
notwithstanding Paragraph 2 above," there should be an addition that read "as if these
transmissions were broadcasts." The Delegation expressed that another issue it had raised at
the previous session was the issue of Paragraph 2 in the object of protection. There was text
stating that "provisions of this treaty shall not provide any protection in respect of mere
retransmissions," and the Delegation wanted retransmissions of broadcast signals to be
protected. The Delegation stated that in situations where third parties retransmit broadcasting
signals of broadcasting organizations, those retransmissions should be protected. The
Delegation stated that it was not the retransmitting entities that should have that right, as it was
a right that should be reserved for the broadcasting organizations. In terms of rights to be
granted, the Delegation stated that it was necessary to have a strong right that would be
granted to broadcasting organizations, as was highlighted in Alternative A, on the right to
authorize and prohibit. The Delegation stated that it should be the right to authorize and prohibit
all kinds of retransmissions, whether simultaneous, near simultaneous, deferred or on demand.
On pre-broadcast signal, the Delegation stated that it was open to discussing what the best way
of addressing that issue was.
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46. The Chair thanked the Delegation of the European Union and its Member States for its
comprehensive view and comments regarding document SCCR/33/3 and commented that when
the term programme-carrying signal was proposed, it had in mind that programme-carrying
signal was broadcast. It stated in reference to the terms retransmissions and transmissions,
there was a suggestion to add "transmission of" in reference to transmission of programme
carrying signals or retransmission of programme carrying signals. The Chair stated that it
wished to find a consensus on what term it would use.
47. The Delegation of the European Union and its Member States clarified that the proposal of
using broadcast did not exclude the use of programme carrying signals and the definition, as
the definition of programme carrying signal was used in the definition of broadcasting. As such,
the definition of broadcasting meant the transmission, either by wireless or by wire of a
programme carrying signal. That was why it thought it correct to use that definition of
programme carrying signal in the definition of broadcasting so as to have a clear object of
protection defined. If the treaty had a paragraph that stated that there was protection granted to
programme carrying signals, that would mean to any programme carrying signals of a broadcast
organization. That would question the necessity of having other paragraphs of that article as
programme carrying signal was any kind of signal, whether it was by traditional means, whether
it was by other means, whether simultaneous or deferred. Its proposal was trying to find the
differentiation between different levels of protection. It supported the proposal made by the
Delegation of the United States of America to discuss other issues like the ones in the chart, for
example the technological protection measures, limitations and exceptions.
48. The Chair stated that when the Committee had drafted the term programme-carrying
signal, it was conceived as the object of protection, as it was meant to protect that signal that
carried a programme. The Chair stated that the Committee was ready for proposals that would
help clarify what was the object of protection.
49. The Delegation of the Russian Federation stated that it had some doubts on the statement
delivered by the Delegation of the European Union and its Member States. The Delegation
stated that most of the Member States had agreed that the treaty would keep the word signal,
as that was the interest of the treaty. The Delegation expressed that the statement of the
Delegation of the European Union and its Member States brought confusion.
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50. The Chair stated that some Delegations had already requested the Committee not to
move from the signal based approach or signal based mandate and that the term programmecarrying signal was synonymous to a broadcast or a broadcast signal. That was why it was
important to maintain the word signal.
51. The Delegation of Italy congratulated the Chair and Vice-Chair and that what was
introduced as the programme carrying signal definition was its technical format. When the
signal entered the net, its nature was changed. There were technically different types of signals
including the broadcast signals and Internet signals. Concerning the definition of
"programmes," it would be better to clarify that copyrighted programmes were not "any”
programme. The Delegation suggested that it stated "which are protected by Copyright or
related rights." Concerning protection for mere retransmission, it was in agreement with what
the Delegation of the European Union and its Member States shared on that that it needed to
be clarified that if retransmissions by third parties were authorized, then they should be
protected. The Committee should look to see if the definition of retransmission was sufficient,
otherwise it should cross out that reference altogether.
52. The Delegation of Nigeria stated that it was flexible with the Chair’s definition of
programme-carrying signal and that it supported Alternative B. For the last part, which was in
square bracket, the Delegation believed that that was the most technologically neutral definition,
and that it had the sufficient space necessary for Member States to implement that instrument.
Regarding retransmission, it preferred Alternative B and was flexible on the definition of near
simultaneous transmission. The proposed agreement statement was welcomed.
53. The Delegation of Mexico stated that the term "programme-carrying signal" as it
understood it was a grammatical question. The Delegation stated that it understood the noun
was signal and that the verb was carrying. The discussion was on the various ways of putting
them together. The Delegation stated that the Committee could not exclude programme signals
as the verb "carrying" needed to be included and object, programme, needed to be included as
well.
54. The Chair stated that the discussion was to clarify the activity that was broadcasting and
also to clarify the broadcast, not as the activity, not as the verb, but as another substantive,
which was the object of protection. Regarding the term beneficiaries, the Chair clarified that
there were three options including those that had the broadcast signal, those that had the
broadcast signal transmission from the same contracted party and had headquarters in
contracted parties, and those that had broadcast signals transmitted from other contracting
parties. The Chair expressed that there were different views on the term protection. There was
one view that referred to 20 and another to 50 and that it would be helpful clarify the term from
20 to 50 in that first option. The Chair stated that in defining the term, the second option was to
refer to the domestic law. Regarding the column of "limitations and exceptions," the first option
was to have a provision similar as the one that was contained in WIPO Copyright Treaty
(WCT) and its mirror provision in WIPO Performances and Phonograms Treaty (WPPT) and the
other option was to go back to Article 15 in the Rome Convention. The third option was to take
the same definition the text used in Article 15 of Rome Convention but with definite exceptions.
Regarding technical protection measures, the Chair stated that the first option was to use
similar provisions as was one in WCT and WPPT. The other option would be protection against
unauthorized encryption of an encrypted broadcast which was part of a submission made. The
Chair stated that another option would be to have no provision on that regard. On the rights
management information, the first alternative was similar to the provision contained in WCT and
in WPPT. The Chair stated that the other option was to have a general mention of protection
against removal or alteration of right management information or have no provision on that
regard.
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55. The Chair expressed that it would summarize what had been discussed during the
informal stated that there had been a change in the order of definitions, with the definition of
broadcasting being first, followed by the definition of programme- carrying signal and then the
definition of programme. The definition of broadcasting would be independent the issue of
cablecasting. That was achieved by adding the term, by wire or by wireless means, to the
definition of wireless transmission, which was connected to broadcasting in a traditional way. It
added to Alternative B a footnote concerning an agreed statement that stated that in the
provisions of cablecasting and broadcasting, repetition should be avoided by having one
definition of broadcasting and cablecasting. Alternative A was still under consideration.
Regarding the second definition, the signal, there had been an interesting discussion on
whether it was originally transmitted. On the definition of program, that definition had not
received any changes. The definition of broadcasting organizations was in brackets as it was
pending and it was agreed that that definition did not affect the national frameworks. On the
definition of retransmission, the pending term was related to reauthorization in the
retransmission, and that that was not considered convenient due to the situation of the
authorization. There was also an issue of the term “any other entity” which could be observed
in Alternative A. That term referred to that transmission that was made by any other entity
rather than the original broadcasting organization. There were some alternative suggestions to
that term for example the use of the term person, the use of the term organization. The Chair
stated that as there was no agreement on that, it was still a term with no alternatives.
Regarding the definition of near simultaneous transmission, that definition seemed to be clear
and as the suggested definition covered most of the concerns, there had been no discussions
on that. Regarding the definition of cablecast signal, as had been discussed, it was necessary
to keep that phrase for a broadcasting organization or to an entity. On the discussion of the
object of protection, there was a suggestion to have the object of protection as broadcast so as
to have the programme-carrying signals and, not broadcast, as part of the object of protection.
The Chair stated that that was there to clarify that the protection did not extend to the
programmes contained therein. The other goal of that first paragraph was that the minimal
object of protection of a treaty was going to cover the so-called traditional ways of broadcast.
The intention of the second paragraph was to clarify that, for example, in the case of
cablecasting, the cable distributors that were not engaged in activities and on flexibility, were
not intended to be beneficiaries of the treaty. An interesting discussion had taken place on the
third paragraph, particularly on the protection of simultaneous or near simultaneous
transmission. The protection of simultaneous or near simultaneous transmission could be
covered in a mandatory way in the treaty but that some delegations needed further
consideration. The discussion on deferred transmission led to the discussion of the different
deferred transmissions, for example, the linear deferred transmission, the catch up services
made through the deferred transmissions and on-demand transmissions. Under further
consideration were the deferred transmissions related to broadcasting, or closely related to
broadcasting activity, which was for catch up services and linear deferred transmissions.
56. The Chair expressed that it would summarize what had been discussed during the
informals but that it would not repeat what was previously discussed in the previous informals.
The Chair stated that on rights to be granted protection, there were two options, the right
authorize or prohibit, and the right to prohibit. There was a suggestion to use the language from
previous, more recent, international treaties. There was also a suggestion to add that
broadcasting organizations should have the exclusive right of authorizing. Some delegations
had expressed their preferences for Alternative A or Alternative B. For the right to prohibit a
common view had been expressed to have an option that would be in between Alternative A
and B. Broadcasting organizations should have the exclusive right of authorizing, as was
mentioned in the rights section and as was reflected in section number three. Some
delegations had shown partial support for the first paragraph of Alternative A, and also for the
second paragraph of Alternative B. On the second paragraph related to the protection of the
pre-broadcast signal, there was a question of the word "own" and there was a last suggestion to
add a phrase not only for broadcasting organizations, or those which have exclusive rights, but
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to have clarity regarding the extent of the protection they would have in terms of the prebroadcast signal. The Chair stated that the discussion reviewed that transmission over the
computer networks could be there so as to clarify that it was a narrower definition of
broadcasting. On the issue of the definition of broadcasting organizations, there was a
sentence in brackets that the delivered programme carrying signal, exclusively by the computer
network, did not fall under the definition of a broadcasting organization. The Chair stated that
the discussion on that was still on going.
57. The Chair opened the floor to NGOs that had statements related to the topics that were
being discussed.
58. The Representative of the Copyright Research and Information Center (CRIC) stated that
as to the definitions, it supported the Chair's modification, especially the definition of
broadcasting. The 2006/2007 General Assembly mandate stated that the scope of the treaty
will be confined to broadcasting and cablecasting organizations in the traditional sense. Both
Alternative A and Alternative B stated that addition of the wired “transmission over computer
networks shall not constitute broadcasting.” The definition of broadcasting organization did not
need to have brackets. The Committee had not reached an agreement on what type of
transmission should be protected, mandatory and/or optional, and some Member States had not
stated their position. The mandatory protection plus option protection would be better under
that circumstance. Regarding rights to be granted, that was the basic right of copyright with the
main purpose of a broadcast treaty being to fight against policy. Those two rights were a
fundamental tool for fighting against policy. In the case of pre-broadcast, there were many
cases by layman that were stolen and uploaded on websites without authorization before
broadcasting. That if that would be protected by the broadcast treaty, without adequate
protection of broadcast signals, that would be as effective as a bucket without a bottom.
59. The Representative of Knowledge Ecology International, Inc. (KEI) stated that on the
question of right to prohibit or authorize or the so-called positive or negative rights, the
Representative hoped that the Committee would stick with the right to prohibit. That would be
cases where if one had compulsory license, the exceptions on the right to authorize could make
a bigger remuneration claim and would impact copyright owners in a negative fashion. Any
efforts to give broadcasters strong or expanded rights and materially transmit, resulted in
weaker and restricted rights for copyright owners. The main element of discussion in the
Committee was on boundaries, on who the beneficiaries would be and what works would be
affected and how. If the Committee was going to extend protections to material that originated
on the Internet, and was downloaded on demand, it opened the door to a much broader and
consequential treaty that had impacts far beyond the purpose of protecting traditional broadcast
from signal piracy. It had not heard any workable way to expand the treaty to material
originated on the Internet, and downloaded on demand. That stopped the treaty from creating a
massive expansion of related rights that were contrary to the notion that copyright was used to
determine the ownership of works. The Committee would need robust exceptions that would
make the conclusion of that treaty even more difficult.
60. The Representative of Karisma Foundation stated that it wished to share a few examples
that presented the dangers of the direction that the Committee was moving in terms of
developing that treaty. It had identified a case of a Twitter user who was uploading content and
whose account was blocked, due to supposed infractions of copyright and the retransmission of
the Colombian football league. That person was sharing short videos from a TV screen, of
football players and matches that were no more than 90 seconds. Although that was not a case
which could represent a real economic detriment to the broadcaster, and although he was not a
professional broadcaster and had less than ten followers on Twitter, his videos were removed.
As the platform was allowing them to broach certain items, the force was disproportionate. As
that individual had a disability, the blockage of his Twitter was also detrimental. The Committee
needed to ensure that the instrument adopted protected measures which were very limited, and
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that it ensured that rights were protected in the most minimal aspect, so as not no infringe on
the rights of others.
61. The Representative of the Japan Commercial Broadcasters Association (JBA) stated that
the issue of protecting broadcasting organizations had been seriously growing, since the
beginning of that agenda item, over the last 18 years ago. Regarding the object of protection,
the Committee needed further discussion on what type of transmission should be protected. It
was concerned about a missing reference on the fixation of broadcast, and the right after
fixation and it had expressed the importance and need of adopting a document that included the
right to fixation or broadcast, and the right after fixation, as had already been proposed by
several Member States in previous sessions. Adopting the right to fixation would prevent the
ongoing piracy of broadcast signals, especially over computer networks. It hoped that the
timetable for a diplomatic conference for the broadcast treaty would be made with mutual
respect and understanding among Member States.
62. The Representative of Centre for Internet and Society (CIS) stated that it aligned itself
with the statements made KEI and the Karisma Foundation. The proposal by the Delegations of
Argentina, Colombia and Mexico, was problematic, as it tried to extend the scope of the treaty
to apply to Internet originated content and thus by extension, Internet transmissions. That
notion had also manifested in the on demand material and catch-up services in the discussions.
The broadcasting organizations, in the traditional sense only. It should as such be limited to the
type of transmission exploited by traditional broadcasters, as stated by the Delegation of Iran
(Islamic Republic of). Whereas the Delegations of the European Union, China, Argentina,
Colombia and Mexico continued to speak of technological advancements to justify the
expansion of the rights under the treaty, there was still no discussion on the inadequacy of
existing international instruments to address those advancements and justify the broadcasters
ask of an additional layer. Reiterating the Asia Pacific Group position, stated that the discussion
of that treaty should be balanced and should take into account the rightholders, and equally
important, should take into account other competing interests and copyright, including the public
interests in scientific cultural, social progress and promoting competition.
63. The Representative of Asia-Pacific Broadcasting Union (ABU) stated that it had 280
members who wanted protection and it was important to protect traditional broadcasters who
provided catch up service in the moment and who would provide technology service in the
future. The proposal by the Delegations of Argentina, Colombia and Mexico was welcomed and
should be considered by Committee, as should a diplomatic conference by Spring 2018.
64. The Representative of European Broadcasting Union (EBU) stated that it supported those
delegations that had referred to the need to have a full treaty text on the table at the following
meeting, as that would certainly facilitate and streamline a discussion. On the proposal made
by the Delegations of Argentina, Colombia and Mexico, wished to refer to its concrete timetable
and end date.
65. The Representative of the International Federation of Library Associations and Institutions
(IFLA) stated that the proposed treaty would risk damaging the public interest unless several
safeguards were put in place. It would not discuss exceptions and limitations, but those should
be full, robust and ideally mandatory. It could not be the case that a new transmission of
previously broadcast material created new rights. That would risk taking works out of the public
domain with no benefit to the original creators. New rights of broadcasters should not make the
search for all potential right holder more onerous and more likely to fail. That as the risk of
incorporating the post-fixation right into the treaty. The solution was to keep any new rights to a
minimum, both in terms of subject and scope to avoid any damaging term extensions, and to
ensure that new rights were accompanied by robust set of reflections that were flexible and
reasonable and were able to accept unforeseen changes in content and new use of content.
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66. The Representative of Society of American Archivists (SAA) stated that for decades,
archives had included not just paper records but also important sound and video recordings,
many of which came from broadcasters. Those were invaluable documents for both cultural
heritage and for protecting citizens’ rights. The major events of our time were perceived by
citizens in terms of videos, especially items that had been broadcast. Those were important
cultural objects. So regardless of whatever measures were put in place to protect the broadcast
signal for traditional broadcasters, it was essential that the new rights didn’t end up, by accident
or intention, adding any further layers on the copyright protection that already existed in the
content. There was clear danger in any approach that attempted the rather impossible task of
future proofing a treaty. It reiterated that any treaty on broadcasting should number one be
focused on the presently known universe, two be technologically neutral and, three, shouldn't
result in any additional residual layer of rights over the content either directly or via
technological protection measures and it was imperative that work on broadcasting continue in
parallel with meaningful work on exceptions.
67. The Representative of the International Federation of Journalists (IFJ) stated that it
acknowledged the desire to co-define internationally, the rights that broadcasters had in many
Member States already. It was concerned that the laudable and positive drive to be
technologically neutral, accidentally created new rights. If the definition of a broadcaster
included an organization which was first to put material out on the Internet, then effectively, the
new right applied to practically everything, but a handwritten manuscript and a performance on
the Stradivarius. The beneficiary of the eventual treaty had to be very carefully drafted to refer
to traditional broadcasting organizations. If one wanted to reuse a broadcast, it would need to
contact the broadcaster first before going talk to any of the authors or performers.
68. The Representative of Alianza de Radiodifusores Iberoamericanos para la Propiedad
Intelectual (ARIPI) stated that it supported the comments made by the Delegations of Colombia,
Argentina and Mexico. Deferred transmission, simultaneous and near simultaneous
transmissions had to be part of the objects of protection. It hoped to see a working plan and an
agreement on the convening of a diplomatic conference.
69. The Representative of the Associación Argentina de Intérpretes (AADI) stated that it
would like the Committee not to infringe upon the human rights of individuals. The efforts
carried out in that session should protect the rights professionals such as interpreters,
musicians and other performers in terms of their human rights in the digital world. Many of
those issues had been highlighted by the GRULAC document, SCCR/31/4.
70.
The Chair thanked the NGOs for their contributions.
AGENDA ITEM 7: LIMITATIONS AND EXCEPTIONS FOR EDUCATIONAL AND RESEARCH
INSTITUTIONS AND FOR PERSONS WITH OTHER DISABILITIES
71. The Vice-Chair introduced Agenda Item 7, limitations and exceptions for educational and
research institutions and for persons with other disabilities, and announced that the Committee
would hear a presentation of a study on that item. The Vice-Chair opened the floor to the
Deputy Director General who had an announcement.
72. The Deputy Director General announced that to promote the widest possible public
access to WIPO’s publications and further its commitment to the dissemination and sharing of
knowledge, WIPO had launched its new Open Access Policy. The Deputy General stated that
WIPO offered extensive collections of publications that included empirical studies, reports,
guides and other learning resources. Under that Policy WIPO provided free online access to all
its publications and to other online content such as Flickr for photos and YouTube for videos.
The Deputy Director General stated that to support the implementation of Open Access Policy,
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WIPO would use the Creative Commons IGO Licenses, which it had helped develop since
2013, with a group of international organizations. Creative Commons licenses were a widely
used and easily understood set of copyright tools, and model agreements, that facilitated
access to the use of creative content. The Deputy Director General stated that moving forward,
new publications created by WIPO would be licensed under the CC BY 3.0 IGO license.
73. The Vice-Chair stated that the study that the Committee was about to hear would provide
clarity on issues that the Committee was going to be addressing in its statements and
questions. The Vice-Chair stated that the study had started in October of the previous year and
that it was under the leadership of Professor Daniel Seng, who had experience in the topic of
limitations and exceptions. The first issue of that study was contained in SCCR/23/4 and
included 136 member countries. The Vice-Chair noted that the study to be presented was very
complete and included all WIPO Member States. The Vice-Chair stated that the Committee
could ask questions to Professor Seng after his presentation, and that any corrections on
information contained in the study could be addressed to the Secretariat. The Vice-Chair
welcomed Professor Seng and gave him to the floor.
74. Professor Seng made a presentation of the study, which he indicated was contained in
1009 pages. The presentation of that study can be found at (Wednesday, November 16, 2016
Afternoon Session): http://www.wipo.int/webcasting/en/?event=SCCR/33#demand
75. The Vice-Chair thanked Professor Seng for the presentation and stated that as figures did
not lie, the use of statistics in such studies was absolutely decisive. The Vice-Chair stated that
the study indicated that there was work to be done to ensure that intellectual property was the
tool for education and research. The Vice-Chair opened the floor to delegations to ask
Professor Seng questions about the presentation.
76. The Delegation of Nigeria, speaking on behalf of the Africa Group, thanked Professor
Seng for his presentation. The Delegation stated that it had looked at the study with the
educational exceptions of all 189 WIPO Member States. The Delegation stated that Professor
Seng had framed the presentation by noting that education, in any society, was automatic and
that notwithstanding the copyright systems, the special status of protection of right holders and
copyright systems, and the use of work to promote and facilitate education, had been
preserved. The Delegation stated that the question it had, was based on Professor Seng’s
thinking that the right to education was a human right. Noting that private and personal use was
a very high percentage of the exceptions and limitations used by many countries, the
Delegation asked Professor Seng to provide clarity on some of the areas that he had excluded
from the study. The Delegation stated that Professor Seng did not delve into exceptions and
limitations for private and personal use, and those that have to do with implementation of works
for personal consumption and their use by natural persons. The Delegation stated that as
Professor Seng highlighted, very strongly, that that was a very helpful exercise for
self-education, for research, for social education, it wanted him to provide some insight into that.
77. The Delegation of Ecuador thanked Professor Seng for his study. The Delegation stated
that it recognized that the study was useful. As it would like to analyze it in its entirety, on the
section of compulsory licenses, the Delegation asked Professor Seng whether that covered free
compulsory licenses or only compulsory licenses that provided for compensation.
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78. The Delegation of Senegal thanked Professor Seng for his study that it believed was very
informative on everything that could be done at the national level. The Delegation stated that it
wondered whether it would not be useful to supplement the study by regional provisions. For
example, there was in Africa, the Bangui Agreement, that contained provisions on exceptions
that were very important, and that until recently, had worked as a supra national text. The
Delegation stated that the text had been revised and now had the minimum standard status
which acted as a law for certain African countries, that did not yet have basic laws on
Intellectual Property.
79. The Delegation of Nigeria commended Professor Seng for his informative and
comprehensive study. The Delegation observed that the section of the study that captured the
provisions on limitations and exceptions for education in Nigeria, excluded provisions regarding
compulsory licenses, which foreshadowed the copyright act. The Delegation desired to know
whether there was any reason for that exclusion. As Professor Seng made an observation in
his conclusion that, with respect to compulsory licenses, there was a need to interrogate the
continued relevance of such provisions in national laws, the Delegation stated that it wondered
what were the reasons for that. Was it because of the lack of use of the provisions, or was
because not enough countries had included that in their national legislation.
80. The Delegation of Iran (Islamic Republic of) expressed its deep gratitude to Professor
Seng for his comprehensive study and presentation. The Delegation stated that it wanted to
know whether at that stage, the harmonization of the national legislation, concerning the
exceptions and limitations for research and educational institutions, was a necessity for all
Member States.
81. Professor Seng responded to that set of questions, and his response would be found at
the webcasting link of WIPO: (Wednesday, November 16, 2016 Afternoon Session)
http://www.wipo.int/webcasting/en/?event=SCCR/33#demand
82. The Delegation of Chile thanked Professor Seng for his informative study. The Delegation
stated that Professor Seng’s categorization on the various areas of exceptions was based on
the understanding that in the world today, the digital environment was ever more important.
The Delegation wished to know what the relevance was, of all those traditional exceptions in the
digital environment. The Delegation also wanted to know whether it was necessary to invent
tools that went beyond the traditional ones, representing the majority of the legislations in the
study.
83. The Delegation of Malawi thanked Professor Seng for his comprehensive study. The
Delegation stated that as was evidenced in the study, most of the Member States already had
provisions on limitations and exceptions in education, and what the Delegation wanted to know,
was whether those provisions were adequate enough to cover educational needs. The
Delegation stated that for countries in Africa specifically, the term that was used in some
legislations was free uses. The Delegation wished to know if that term was something that fell
outside fair use or fair dealings or if they were the same and just a difference in terminologies.
84. The Delegation of China thanked Professor Seng for his comprehensive, detailed and
extensive study. The Delegation stated that it believed that study could be continued, so that
copyright could play a greater role in education. The Delegation asked whether in the new
digital environment, Professor Seng had more specific recommendations on limitations and
exceptions for educational activities.
85. The Delegation of Argentina thanked Professor Seng for his exhaustive study. The
Delegation asked whether there were any paid or remunerated licenses, paid by a university for
example, that would have an impact on other countries. The Delegation wished to know
whether there would not be an effect in another area where the students were testing.
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86. Professor Seng responded to that set of questions, and his response would be found at
the webcasting link of WIPO: (Wednesday, November 16, 2016 Afternoon Session)
http://www.wipo.int/webcasting/en/?event=SCCR/33#demand
87. The Delegation of El Salvador thanked WIPO and Professor Seng for the study. The
Delegation stated that although it had limitations and exceptions already enshrined within its
legislation, as it had doubts about educational exceptions and limitations, it wished to know if
those educational limitations and exceptions were restricted to institutions that were public or
nonprofit, or whether for profit organizations were also included.
88. The Delegation of the European Union and its Member States thanked Professor Seng for
the presentation and exhaustive study. The Delegation noted Professor Seng’s mention that
the study did not touch upon some issues that were not accessible, or that were too difficult to
take into account, or that were not relevant enough. On that note, the Delegation wished to
know if Professor Seng had an idea on how to gain a better understanding on those issues.
89. The Delegation of Cameroon wanted to know what relationship Professor Seng could
establish between his study and the publishing companies of those works. The Delegation
stated that it was aware that access to education was often halted or slowed down, precisely
because of the cost of the works, which were usually decided by the editing or publishing
companies
90.
The Vice-Chair opened the floor for NGOs to submit their questions.
91. The Representative of KEI stated that publishers had asked governments to incorporate
binding norms in treaties and trade agreements to expand rights, extend terms, enhance
enforcement, and restrict the use of exceptions through such measures as the three-step test.
The Representative wanted to know why that type of harmonization was done, yet no efforts to
protect educators and students, and to ensure that minimum standards for exceptions were
implemented. The Representative also wanted to know why the 1971 Berne appendix had
failed, and if that failure was because the procedures were unworkable. The Representative
asked if the 1971 Berne appendix had been poorly designed for Internet-based works, and
whether it should be updated to reflect the new digital technologies. The Representative
wanted to know if remunerative and non-remunerative exceptions had different features and
purposes. It asked whether some uses were better with non-remunerative, such as quotation,
personal use, news of the day and in many countries library lending and classroom teaching
exceptions, while in other cases a remunerative exception could permit broader use of works
subject to compensation, such as in Nordic countries. The Representative noted that it had
encouraged countries to consider using a combination of approaches depending on the purpose
and the objectives of the exceptions.
92. The Representative of Communia thanked and congratulated Professor Seng on the
study, which it stated would be very useful in comparing the various legal systems and in
understanding the differences and similarities between them, and which would also go to further
inform the discussions on copyright reform for education. Having done a non-exhaustive
reading of the study, the Representative wished to ask some questions. The Delegation stated
that Professor Seng had analyzed more than 1,500 exceptions or provisions and had
discovered that some countries had as much as 32 provisions whilst others did not have more
than one provision. Two years before then, the Representative stated that it had conducted a
comparative study on educational exceptions in Europe, which led it to conclude that quantity
did not mean quality nor did it mean more freedoms. The Representative stated that more
provisions normally meant more restrictions and more provisions meant more interpretation
problems due to the overlap of provisions. The Representative stated that what it found out in
Europe was that specific provisions for various educational activities were more complex and
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had much narrower scope than education exceptions in countries that only had one provision,
and that used generic formulations such as use and anything. Moreover, those countries with
numerous provisions seemed less prepared for the digital age and modern education than
those with a single flexible open ended norm. The Representative wanted to know if Professor
Seng came to the same conclusion, that a growing number of provisions normally meant more
obstacles for education and not more educational freedoms. The Representative stated that
Professor Seng concluded that, in the creation of educational exceptions, Member States had a
good understanding of the limits imposed by international treaties. The Representative stated
that based on its own research, although European countries respected the limits imposed by
international treaties, their national laws did not take advantage of those limits. As such, the
national exceptions and limitations that it had analyzed were far less generous than the
international treaties and in the case of the European Union, far less generous than Europe’s
original directives. The exceptions and limitations were not technologically neutral, and did not
benefit an open ended network of users and other fair educational uses. The Representative,
as such, wanted to know if the countries that Professor Seng had analyzed were offering to their
educators and students, the same educational freedoms provided by international treaties, or if
they were being less flexible, covered less uses, and protected less beneficiaries than the
treaties would allow. The Representative stated that it realized that Professor Seng had not
analyzed exceptions and limitations dealing with translation adaptations and other alterations of
protective words for educational purposes. The Representative stated that it found those to be
essential, not only in the context of teaching assignments, but also to build upon existing works
and create new educational resources namely in context of the OER movement. The
Representative stated that it would appreciate if Professor Seng could explain the reasoning
behind that decision. The Representative asked the Vice-Chair if the Open Access Policy that
was adopted the previous day, would cover the data collected by Professor Seng. The
Representative stated that as Professor Seng had used updated and translated versions of
national laws that were available on WIPO Lex and also versions collected individually from
Member States, it would be useful to have full access to that data, as it would save time in
future research on that topic.
93. Professor Seng responded to that set of questions, and his response would be found at
the webcasting link of WIPO: (Thursday, November 17, 2016 Morning Session)
http://www.wipo.int/webcasting/en/?event=SCCR/33#demand
94. The Vice-Chair stated that it was time to conclude the presentation, and that any Member
States that wished to clarify and correct the study, needed to send comments through the
Secretariat.
95. The Delegation of Brazil thanked WIPO and in particular, Professor Seng for what had
clearly been a labor of love. The Delegation stated that although the study was a work in
progress, based on the section on its country, it was very confident in the comprehensiveness
and the accuracy of the report. The Delegation stated that the report would provide it with much
food for thought in its ongoing internal debates about copyright law reform and also as it
engaged in trade negotiations, which contained an IP chapter. The Delegation asked Professor
Seng to not stop, as it was looking forward an even longer version of that report in the not so
distant future.
96. The Representative of the International Video Federation (IVF) thanked Professor Seng
for his very comprehensive, interesting and useful study. The Representative asked Professor
Seng if it were possible, and not too cumbersome, to make a distinction between the countries
that were members to the WCT and the WPPT. The Representative stated that it was asking
that question because there was a lot of attention and exceptions in the digital environment, and
it could be interesting for further discussion to have an analysis.
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97. Professor Seng stated that as he already had worked on some preliminary data on that
already, he would be happy provide that analysis.
98. The Vice-Chair closed the presentation and stated that the study carried out by Professor
Seng was going to be very useful for all the work and all the negotiations that were going to be
carried out within WIPO, and specifically within the SCCR. The Chair thanked Professor Seng
for his presence.
99. The Vice-Chair invited the regional groups to make initial statements regarding Agenda
Item 7, limitations and exceptions for educational and research institutions and for persons with
other disabilities.
100. The Delegation of Nigeria, speaking on behalf of the Africa Group stated that it looked
forward to holding constructive and result-oriented discussions on the current limitations and
exceptions of the SCCR. The Delegation stated that as it had expressed in its opening
statement, it believed it was simply time to determine a functional path forward, for the
Committee's work in that area. The Delegation strongly believed that the absence of a clear
result-oriented time frame for the Committee's discussion of the limitations and exceptions
agenda was more harmful than helpful to the work program of the SCCR and the overall
objective of the exercise. The Delegation supported the Chair's idea of holding regional
meetings to facilitate understanding of the Committee’s work. The Delegation stated that at the
crux of the SCCR discussion on limitations and exceptions was the need to facilitate access to
knowledge, information, and lifelong learning opportunities for anybody, wherever they were as
illustrated in SDG 4, a promise made to the world's peoples by all Member States of the United
Nations. The Delegation stated that all educational institutions remained central to the learning,
creation, innovation and discovery processes, of life norms. The copyright system enabled the
stakeholders to strike a beneficial balance between right holders and the public interest. That
was in fulfillment of the copyright foundation of rewarding creativity and the public good. The
Africa Group had struggled to fully separate the discussion on limitations and exceptions and
libraries and that of limitations and exceptions for educational and research institutions. There
was very little that separated both subjects, as they were both aimed at promoting knowledge
and facilitating access to information for human and societal growth and advancement. As was
proposed by the Africa Group in 2012, the Committee should consider holding discussions of
both subjects in tandem. Given that most of the 11 principles identified for limitations and
exceptions for libraries and archives, would apply for limitations and exceptions for educational
and research institutions and for persons with other disabilities other than print, such a direction
had the chance of serving a good practice. The Delegation stated that pending SCCR
consideration of that idea, it would request that the Committee continued that discussion on
limitations and exceptions in line with the 2012 General Assembly mandate with a view to
determine the most functional inclusive and mutually acceptable way forward. The 2012
mandate envisaged a number of outcomes but did not prejudge the outcome. The Delegation
believed that the array of related documents at the Committee's disposal, including studies and
other materials, would immensely assist its work in determining how to proceed. Holding only
exchange of information on national practices would not suffice. As the Committee deliberated
on exceptions and limitations for educational and research institutions, the Africa Group looked
forward to positively contributing to the discussion on the Chair's expected chart for educational
exceptions. The Delegation stated that it welcomed the presentation by Professor Seng and
comprehensive presentation on his updated study that included all 189 Member States of
WIPO.
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101. The Delegation of Chile speaking on behalf of GRULAC thanked WIPO for the Open
Access Policy, in particular, the use of Creative Commons Licenses for content generated in the
future in the framework of WIPO. The Delegation stated that the issue of exceptions and
limitations, which the Marrakesh Treaty stands as one of its important results, has been
promoted by GRULAC since its beginning. Regarding limitations and exceptions for
educational and research institutions, GRULAC stated that it would like to commend the
presentation and study by Professor Seng on the copyright limitations and exceptions of
educational activities. The Delegation thanked Professor Seng for going through the copyright
legislations of the 189 members of WIPO. The Delegation stated that it had in the beginning
observed a clear cut interest and commitment to support educational objectives, with the
protection of authors and performers in its creative works. GRULAC considered that it might be
interesting, based on statements, to study the effect on the exceptions and limitations. The
conclusions of the study were a contribution to the challenges that the Committee was facing in
its discussions. The Delegation stated that it looked forward to the preliminary presentation by
Professor Reid and to other proposals that would move the discussion on that matter forward.
102. The Delegation of Latvia, speaking on behalf of CEBS, thanked Professor Seng for the
educational research analysis, which covered all Member States. The Delegation stated that it
recognized the crucial role played by educational research institutions in the development of the
society. The Delegation considered the discussions on the national implementation of the
international legal framework on copyright, as the main focus of the work under that agenda
item. The Delegation stated that it was expecting to hear more evidence-based approaches on
the different ways to integrate the national needs in the legal framework and in that regard, it
believed that more useful discussions on licensing might be of interest to all Member States.
The Delegation stated that it was looking forward to Professor Reid's presentation on the study
of limitations and exceptions for persons with other disabilities than visual impairment. The
Delegation expressed that given the exchanges that had taken place, and the studies that had
been presented to the Committee, a legally binding instrument would not be an appropriate
outcome of the work of that Committee under that agenda item. The Delegation believed that
under that agenda item, the Committee could work on providing guidance to the Member States
on the implementation of international legal instruments.
103. The Delegation of Turkey, speaking on behalf of Group B, stated that it would like to
highlight the objectives and the principles as proposed by the Delegation of the United States of
America in the document SCCR/26/7, on the topic of the limitation and the exceptions for the
educational and research institutions. The Delegation believed that that document could
compliment such work on the limitation and exceptions for education and research institutions.
Regarding the study by Professor Reid on persons with other disabilities, the Delegation stated
that it looked forward to his presentation and that it would like to have an update at the earliest
opportunity. As there was a lack of consensus, in finding a basis on which to proceed forward,
the same consideration as with the previous item should be taken into account. The Delegation
stated that the discussions in the Committee should focus on understanding better the issue.
The Delegation took note of the proposal by the Delegation of Argentina on the limitations and
exceptions for education and research institutions, and for persons with other disabilities. Since
the proposal was submitted shortly before that Committee meeting, the Delegation looked
forward to the discussions of the proposal at the following sessions of the SCCR.
104. The Delegation of the European Union and its Member States stated that it welcomed
discussions on how the existing international framework would support educational and
research institutions and people with disabilities both in the analog and the digital worlds. The
Delegation believed that for that agenda item, the objective should be to provide guidance to
WIPO Member States on how to adopt and implement meaningful limitations and exceptions on
the national level in the areas within the current international legal framework. In that regard,
the Delegation welcomed the presentation by Professor Seng on exceptions and limitations for
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education and research, and it equally looked forward to hearing about the scoping study on
limitations and exceptions for persons with disabilities other than print disabilities by Professor
Reid. The Delegation reiterated that it was important that WIPO Member States maintained a
certain degree of flexibility, which was very relevant in view of the different legal system across
WIPO's membership. In many Member States, licensing played an important role, at times
alongside the application of exceptions. The Delegation did not think that working towards a
legally binding instrument was appropriate. It believed that discussions on the basis of the chart
that the Chair proposed, would be most useful if they focused on the exchange of best
practices, with the view to find efficient solutions that arrested any specific issues, for example
via national limitations and exceptions or licensing under the current international treaties. The
Delegation took note of the proposal by the Delegation of Argentina concerning limitations and
exceptions for libraries and archives and exceptions for education and research institution and
for persons with disabilities. As the proposal arrived very late, the Delegation stated that it we
needed more time to better understand it. The Delegation reemphasized its view that the work
undertaken by that Committee could have a meaningful outcome, only if the Committee shared
the same understanding of the starting point and the objectives of that exercise.
105. The Delegation of China thanked the Secretariat and Professor Seng for the deep and
wide study. The Delegation hoped that through joint efforts, there would be relevant discussion
on copyright, in terms of education and research institutions. The Delegation expressed that it
paid great attention to the fair use of copyright and as such had relevant regulations on
exceptions and limitations for education and on persons of other disabilities.
106. The Delegation of India, speaking on behalf the Asia Pacific group, thanked Professor
Seng for his study. The Delegation expressed that exceptions and limitations were essential
requisites for all norm setting exercises and understandings in national and international forum.
Those provisions were vital for achieving the desired balance between the interests of right
holders and public welfare in scientific, cultural and social progress, especially in developing
and least developed countries. The need to maintain a balance between the rights of authors
and the larger public interest, particularly in education, research, and access to information, was
clearly reflected in Article 7 of TRIPS. Mostly operating on a noncommercial basis, libraries and
archives were two vital institutions of society and in most developing and least developing
countries, they were often the predominant, if not the only, source of material for students and
academics. In fact, people in all countries, irrespective of their level of development, benefited
from exceptions and limitations for libraries and archives. The agreement on limitations and
exceptions for libraries and archives would allow those benefits to be experienced by all
humankind, instead of restricting them to individual countries. Such an agreement would
require uniformity and balance at the national level, including the harmonization of domestic
laws, and policies, which would also contribute to safeguarding and promoting the legitimate
interests of all stakeholders. The Delegation supported the sharing national experiences of
Member States which it believed was beneficial for all. The Delegation reiterated its previous
proposal for appointing a facilitator or friends of Chair, like other WIPO Committees, who could
take that process forward in an intensive and focused manner. The Delegation requested and
urged all Member States to seriously consider its proposal.
107. The Delegation of the Russian Federation stated that while the research that was
presented in the Committee presented the importance and the necessity of the work on
limitations and exceptions, the Delegation wished to bring to the consideration of the
Committee, something that would accelerate its work and that would unite two issues:
limitations and exceptions for libraries and archives and limitations and exceptions for
educational and research institutions. The Delegation stated that in principle, that was one
issue, moving in one direction, and that it could be developed as a single document. The
Delegation stated that the Committee was not paying enough attention to informal meetings and
as such did not produce the results that it wanted. The Delegation suggested that at following
session of the Committee, a small working group be created so as to enable Member States to
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look at the documents from the Committee. The Delegation stated that that would considerably
promote the solution of those issues, which stood before the Committee.
108. The Delegation of Iran (Islamic Republic of) stated that it welcomed the Open Access
Policy of WIPO. The Delegation was confident that that initiative would be a turning point in the
dissemination of the knowledge of IP-related matters and could play an important role in
strengthening respect for IP. The Delegation stated that the intended purpose of copyright was
to advance cultures, science, and education. A key to proper functioning of the copyright
system was achieved on the one hand by providing private incentives for the carrying out of
work and on the other hand, promoting access to work. In that regard, the Delegation reiterated
the need to maintain a balance between the rights of authors and the large public interests,
particularly education, research, and access to information. The General Assembly had given
the mandate to SCCR in 2012 to work towards an appropriate international legal instrument or
instruments on the topic of limitations and exceptions. Accordingly, it was highly expected from
the Committee and the Member States to substantively and constructively engage in the
discussion to advance the work in accordance with that mandate. The Delegation stated that it
supported current initiatives to draft an appropriately legally binding instrument on limitations
and exceptions for educational and research institutions and persons with disabilities at
international level, as those institutions were important in providing people with access to
information and culture. Such a legally binding instrument would make it possible to meet the
needs of all Member States in terms of the legislative work.
109. The Delegation of India stated that limitations and exceptions for educational institutions
and for persons with other disabilities were of crucial importance in an increasingly bottomless
world. The Delegation stated that the way out was to set up an international framework that
would shape the Member State local legislations. Further differences in national legislations
were bound to block the flow of knowledge, exchange, and to overcome that, required an
international framework. The Delegation stated that the world was caught up with issues of the
have and have not, the knows and knows not, which were yet to be resolved but needed to be
addressed. The Delegation stated that the legitimacy of copyright among the public was
squarely dependent on the rightful access to the public at large. The Delegation urged the
Member States to work towards that goal.
110. The Delegation of Indonesia stated that it aligned itself with the statement, on the
limitations and exceptions for educational and research institutions and for persons with other
disabilities, delivered by the Delegation of India on behalf of the Asian Pacific group. The
Delegation stated that the copyright systems should be balanced, taking into account
commercial interest in copyright and right holders and also the public interests in scientific,
culture and social progress. The Delegation stated that the SCCR should continue to
substantively discuss the limitations and exceptions for educational and research institutions
and for persons with other disabilities that would result in normative, that was embedded in an
effective international legal system that facilitated the lawful exercise of limitations and
exceptions.
111. The Delegation of South Africa expressed its appreciation to the Secretariat and to
Professor Seng for his comprehensive study on limitations and exceptions for education. The
Delegation aligned itself with the statement made by the Delegation of Nigeria, on behalf of the
Africa Group and wished to make reference to SDG 4. The Delegation stated that in order to
fulfill that promise, the role of education and research institutions had to become imperative,
and that the members of the Committee had to create a conducive environment to facilitate
access for educational and research institutions and for persons with other disabilities. The
Delegation expressed that if the Committee channeled energy into the work of that agenda item,
WIPO could make a meaningful contribution to the global development agenda. In order to take
concrete steps, the Committee needed to identify and bridge existing gaps between national
and international spheres, especially those which could only be addressed through an
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internationally binding legal instrument. The Delegation stated that Professor Seng’s study
provided valuable data, that could assist the Committee in that goal. The Delegation expressed
that within the African context, there was distance learning, which came about as a result of the
rapid diffusion of technology, and which necessitated the creation of an adequate framework
that took into account the erosion of physical and geographical boundaries. In that regard, the
Delegation of South Africa’s work in the Committee was focused and structured on the vast data
gathered in Professor Seng's study, which could bring the Committee one step closer to a
conclusive and mutually agreeable outcome that had practical application.
112. The Delegation of Nigeria aligned itself with the statement made by itself, on behalf of the
Africa Group. The Delegation stated that the development of society could not be over
emphasized, therefore, any framework that would enhance the efficient functioning of
educational activities, to serve the purpose of building knowledge and socioeconomic needs,
deserved balanced consideration. The Delegation expressed that that was pertinent in view of
WIPO's efforts to draw linkages between its activities and the SDGs. The Delegation expressed
its disappointment that that agenda item had not enjoyed sufficient allocation of time and tools,
to enable any meaningful progress to be made. The Delegation hoped that that trend would be
reversed with the provision of the Chair's chart as a tool to facilitate discussion on educational
exceptions, including the eight categories identified by Professor Seng’s study and the working
document SCCR/26/4 Prov., amongst others. The Delegation stated that it welcomed Professor
Seng's updated study, which covered the educational limitations provisions in 189 Member
States of WIPO. The study was very instructive and rightly demonstrated the diverse practices
in Member States, in terms of making provisions for limitations and exceptions. The study
reechoed the need for a global standard, that would create an informative approach, as
educational activities became increasingly transnational in the context of digital delivery
platforms. To develop a deeper understanding and identify solutions. The Delegation hoped
that the Committee would consider the proposal for regional workshops on that agenda item to
develop a deeper understanding and identify solutions.
113. The Delegation of Argentina wished to thank the Delegation of Chile for its declaration on
behalf of GRULAC. The Delegation stated that preceding the meeting, it had put forward a
document that introduced a new element into the discussion on just education, libraries and
archives and persons with other disabilities. The Delegation expressed that that was rather new
in the discussions, as in the general system of intellectual property at the international level, the
only principle of international law, was the principal of territorial reality, which was applied
universally and so the protection also applied in the country where that protection was sought.
There were certain types of legal relationships that were implied in that, particularly, if there was
an assessment on whether a certain type of behavior was an infringement. In principle, each
country had its own system, which functioned in accordance to its own national conditions, and
as demonstrated by Professor Seng, which were also applied to exceptions that permitted a
wide range of alternatives. The Delegation suggested bringing an attempt to demonstrate that
for the international validity of exceptions and limitations, it was possible to have a principle in
the country of origin or the place of production, whose validity had an effect of validity in other
countries. The Delegation explained that if the Committee did not abide by similar principles,
then there would be a range of exceptions as was evidenced in the study carried out by
Professor Seng. The Delegation suggested that the Committee reach absolute uniformity in the
context of exceptions, so that libraries could render to each other without fear of being
considered infringement. The Delegation explained that that was the combination of the
principle of territoriality, the three-step test and the principle of harmonization. The Delegation
stated that a single right in terms of the validity of exceptions, required an in depth additional
study. The Delegation expressed that its document was simply an introductory proposal to kick
off the discussion regarding that issue. The Delegation suggested that using the table that was
under discussion, and as well as Professor Seng’s findings, the Committee consider a minimum
system of exceptions and limitations. For example, if a library was asked from another library
for a copy of a book that was no longer in print in another country, it could take a minimum
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option, by requiring an editorial seal where the work is still being sold or in a used book market.
That would require combining the rule of harmonization and the rule of uniformity, which the
Delegation reiterated that it was proposing. The Delegation stated that that process could be
assisted by the harmonization rule, which was a system that required further study and one
which must be accompanied with other existing proposals. The Delegation stated that using
exclusively the principle of territoriality could be deficient, whatever instrument or instruments
they would use.
114. The Delegation of Chile stated that the issue of exceptions and limitations was a topic of
importance for its country, and that it considered teaching and research institutes as essential,
as well as the people with other disabilities. The Delegation thanked the Secretariat and
Professor Seng for the study. On the section in the study referencing to Chile, the Delegation
commended the corrections that were made in reference to its legislation, which it had
discussed in the previous session. The Delegation stated that the study, which discussed the
global reality, would be greatly useful in the Committee discussions. The Delegation expressed
that the limitations and exceptions proposed by Professor Seng would facilitate the analysis of
that topic. The Delegation stated that it was stricken by the very low quantity of Member States
who had limitations and exceptions especially aiming at remote or online education as well as
TPMs. The Delegation stated that that in some way demonstrated the challenges ahead in the
digital environment, and the reflections that needed to be made to update legislation.
115. The Delegation of Guatemala endorsed the statement made by the Delegation of Chile,
speaking on behalf of GRULAC. The Delegation commended on the study carried out by
Professor Seng which it believed was important in the unification of the information on
provisions of educational entities, libraries and archives.
116. The Delegation of Brazil stated that it was pleased that the SCCR was engaging earnestly
in the discussion of exceptions and limitations. Three years after the conclusion of negotiations
on the Marrakesh Treaty, the Delegation believed the Committee was ready to stand unified for
libraries, museums, research and educational institutions, as well as for persons with
disabilities. The Delegation stated that GRULAC, under the able coordination of the Delegation
of Chile, had been discussing those issues intensely. The Delegation was glad that they
seemed to be mobilizing many other Member States. The Delegation stated that it was
convinced that a healthy copyright system, with well considered limitations and exceptions
provided more effective and sustainable protection to rights holders. That system also
encouraged the progress of science and of the useful arts. The Delegation stated that in Brazil
and in many other countries, students wishing to pursue their education often fought an uphill
battle, high tuition costs, less than ideal access to the Internet, insufficient and poorly stocked
libraries, even the high prices of academic books, not all of which were available in Portuguese.
In that regard, the Delegation was ready to contribute to the discussions at the SCCR, with a
view to achieving consensus on the new legal instrument or instruments that would ensure
every country had the necessary backing to establish a balanced and effective national
copyright system, which took full account of economic and social needs, while respecting the
legitimate rights of copyright holders. The Delegation believed that those were far from
contradictory and that they were mutually reinforcing as people respected a fair system.
Another very important point was on the need for a much higher degree of international
uniformity, to enable libraries and archives, museums and research institutions, in different
countries, to fully cooperate with one another without fear of liability, for the benefit of users
worldwide. That point was, among others, stressed the proposal by the Delegation of
Argentina. The Delegation stated that it was engaging in those discussions in good faith, that
their outcome would lead to a change in its own national legislation.
117. The Delegation of Mexico stated that education was one of the most important factors
involved in development and in the progress of people, societies and countries as a whole.
Education had become extremely important because of the scientific and technical changes,
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which were moving so swiftly, and which the world was experiencing at that time. From an
economic point of view, education was considered as one of the most relevant elements
involved in production, and from a social point of view, it was the basis for the eradication of
inequalities, poverty, illiteracy, and from a human point of view, education was a basic human
right. Research was aimed at the acquisition of new and better knowledge in various areas,
such as health, art, literature, which in turn generated numerous results and outcomes in
society as a whole. For that reason, the Delegation stated that the government of Mexico
welcomed the limitations and the exceptions for educational and research institutions and for
persons with other disabilities. The Delegation believed that exceptions to copyright for
educational purposes would go to support informational material, traditional educational
systems and remote learning system. The Delegation believed that a way of supporting
education, and encouraging scientific research of a quality level in any country, was through the
improvement of access to the works that were copyrighted. The Delegation stated that it had, in
its country legislation, included provisions on limitations and exceptions for educational and
research institutions. In that context, the Delegation supported the topic of limitations and
exceptions for the educational and research institutions and for persons with other disabilities.
118. The Chair stated that several sessions ago, it had prepared a chart for the topic,
exceptions and limitations for libraries and archives, on which were a list of suggested main
topics to be discussed, in an orderly and structured manner. The Chair stated that for the topic
of exceptions and limitations for educational and research institutions, it intended to do the
same thing and had prepared, with the support of the Secretariat, a chart regarding the
limitations and exceptions for educational and research institutions. The Chair clarified that the
chart, at that point, did not include the limitations and exceptions related to persons with other
disabilities, due to the premature stage of that discussion, and that it was that afternoon, that
the Committee would for the first time hear a scoping study on that issue. The Chair clarified
that the intention of the chart is clarified in the chapeau, in a paragraph, which was in the same
line as the paragraph introduced in the chart of exceptions and limitations of libraries and
archives. The Chair explained that the chart was designed to serve as a useful tool in providing
structure, in the substantive discussion of each topic, drawing on the many resources before the
Committee. The Chair stated that the chart would allow the Committee to have an evidence
based discussion that was respectful of different viewpoints, without guiding the discussion
toward any particular or undesired outcome but to lead to a better understanding of the topics.
The Chair explained that the chart had several columns including a column on the number of
the topic, a column on the title of the topic, and two additional columns that were related to
document SCCR/33/6. The first of those two columns was the executive summary on the study
on limitations and exceptions for educational activities and the second of those two columns
contained the concluding observations, as was highlighted in document SCCR/33/6 pages 49 to
51 of the document. On the list of topics, the Chair explained that, just as some delegations
had requested, the eight topics selected by Professor Seng for his study were the basis of the
list in the chart. Those topics contained in Professor Seng’s study were the private/personal
use, quotations, educational reproduction, educational publications, anthologies, compilations
and composite works, school performances, educational broadcasts, communications and
recordings. The seventh topic would be compulsory licenses for educational reproductions and
translations and the eighth one would be the TPM/RMI exceptions for educational purposes.
The Chair stated those were the topics contained in Professor Seng’s study, and that as other
delegations were of the view that the Committee should take into account document SCCR/26/4
Prov., which contained other topics or elements, to see if it were possible to pick from some of
the topics listed in that document, that is what the Chair had done. As such, the Chair had
selected from that document, additional topics for the chart, including, orphan works, contracts,
importation and exportation or cross border issues, and limitation of liability for educational
institutions. As the last four topics were not part of Professor Seng’s study, the Chair stated that
it wanted to explain why it chose those topics by reviewing the structure of document,
SCCR/26/4 Prov. The document started with the preamble and the section “general applicable
considerations”, which the Chair stated, did not make sense to be in the list of substantial topics
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to be discussed. Section number 4 of that document contained “Uses”, and on the uses, the
Chair stated that it was probably more focused on the topics that it wanted to select. However,
the first use had the title “educational, teaching and research institutions”, and the Chair stated
that it did not select that topic, because educational teaching and research institutions were a
cross cutting element of all the topics selected in Professor Seng's study. Therefore, there was
no point including it as one topic to be discussed, as it would be discussed in each of the
remaining topics. The Chair explained that it would join its comments for section 4.2 with its
comments for section 4.3, as they were self-explanatory inside and outside classroom
exceptions. The Chair stated that those were the places where an exception could work, and
as such, that was a sort of condition applicable to some exceptions. The Chair stated that
Professor Seng's study focused on the exceptions corresponding to exclusive rights, which
were clearer, and included an exception for reproduction, an exception for public performance,
the applicable condition of which included inside the classroom or outside the classroom. The
Chair stated that it did not select those for the study. On section 4.4 “availability on an
interactive basis and communication to the public for educational purposes”, the Chair stated
that it considered it already included in Professor Seng's list, as that availability could imply part
of reproduction or educational broadcasts, communications and recordings. On section 4.5,
“anthologies and chrestomathies”, the Chair stated that anthologies was one of the specific
topics selected by Professor Seng's study, which was listed under topic number 4, educational
publications, anthologies, compilations and public works. On section 4.6 “distance learning”,
the Chair stated that in the presentation by the Professor Seng, he had an explanation of the
situation of distance learning, which was partially involved in the discussion for educational
broadcast communications, and recordings. The Chair stated that the Committee would use the
comments regarding that important issue of distance learning. On section 4.7 “research”, the
Chair stated that the term "research," was one of the main goals of the terms used for that
agenda item. The Chair stated that the term research was a cross cut topic that would be
mentioned in each and every topic proposed in the chart list, so it did not add research as one
specific topic, as it would be mentioned in the remaining list in the document. The Chair stated
that the section 4.8 “reverse engineering” was something related specifically to the uses of
software, and in that regard, since there was no specific peculiarity of the type of work, it might
involve reference to that when necessary and did not include it as a topic. The Chair stated that
on section 5 “persons with other disabilities”, it was still not part of the topics because the
Committee had yet to hear the scoping study. The Chair stated that section 6 was “general
comments on topics 1 and 2”. The Chair clarified that as those general comments were related
to specific topics, they did not deserve to be selected as topics themselves. The Chair stated
that section 7 included “broader topics with implications for education”, and were not strictly
exceptions for educational purposes. The Chair stated that those were topics to be considered
when the Committee engaged in such discussion and the first option was just to take them into
account, but not necessarily to put them on the list. Section 7.1 “technology” was neither
technology, nor an exception, but was a matter to be discussed when the Committee engaged
in that structured discussion. The Chair explained that section 7.2 was “orphan works and
withdrawn or out of print works”, and that it had selected that topic because it did the same in
the structured chart of exceptions and limitations for libraries and archives. And since it was still
in the chart that had not been discussed on the chart for libraries and archives, and was listed in
document SCCR/26/4 Prov. as a topic to be discussed, the Chair had selected it as topic
number 9. The Chair stated that on the topic “public domain” in section 7.3, which did not have
paragraphs contained therein, and was something that did not require an exception because it
was a public domain, the Committee would go back to it in the discussions of the topics that
required exceptions at the national level. The Chair stated that section 7.4 was “contracts” and
that it was given the same treatment as exceptions and limitations for libraries and archives,
which was included under the topic contracts, and would be discussed in the chart. The Chair
stated that the topic “ISP liability” in section 7.5 was a very important topic that was a part of
exceptions and limitations for educational purposes. The Chair stated that that was something
the Committee could take into account, but was not something that was closely related to the
list. In section 7.6 was the topic “importation and exportation”, which was part of the list
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mentioned as well as part of the chart for exceptions and limitations. Section 7.7 dealt with
“public health or security”, which were tremendously important issues. The Chair stated that
whatever input came from the Committee’s concern with public health or security, could be
shared when the Committee discussed the topics closely related to exceptions and limitations
for educational purposes. The Chair stated that the annex contained comments made on
generally applicable arrangements. In light of that explanation, the Chair stated that it would go
back to its proposed chart for that topic, which contained the eight topics by Professor Seng and
four topics selected from the previous documents related to that material. The Chair stated that
that was the case in the similar chart for exceptions and limitations for libraries and archives.
The Chair expressed that that list was just a proposal, that it was the Chair’s proposal and could
be modified. The Chair reiterated that the chart was there to offer the Committee a structured
discussion to be followed.
119. The Chair opened the floor for comments.
120. The Delegation of Nigeria, speaking on behalf of the Africa Group, thanked the Chair for
the preparation of the Chair's chart. The Delegation believed that the document sufficiently
covered the wide range of exceptions that the Africa Group would be interested in discussing in
that Committee. The Delegation stated that it looked forward to the Chair’s chart being the
basis for immediate future discussion on exceptions and limitations for education and research
institutions. The Delegation stated that in terms of the level of maturity and the need to further
discuss on exceptions for persons with disabilities other than print, it could perhaps see why the
Chair had excluded that topic. In terms of educational and research institutions however, the
Delegation believed that the Chart was sufficient to proceed future discussions. The Delegation
stated that as it was just receiving the chart, it would not have substantive discussions to make
on it. The Delegation expressed that it liked the principles that were captured by Professor
Seng and SCCR/26/4 Prov., and that it looked forward to further discussions on that.
121. The Delegation of Mexico thanked the Chair for making available the chart. The
Delegation believed that the char was very useful, because it gave the Committee an idea of all
the topics involved. The Delegation called on all the delegations to study the chart because
based on the way that the Chair had presented it, it was easy to understand. The Delegation
expressed that it had a few questions about topics 9 and 10. The Delegation asked the Chair
what its reasons were for including the topics of orphaned works and contracts.
122. The Chair stated that as that was part of the initial proposal, it did not mean that the Chair
personally agreed with one specific topic that should be part of the list. The Chair expressed
that even as the Chair's chart, the chart tried to reflect what was suggested from the delegations
in previous documents. The Chair stated that if after discussions, there was a consensus that
contracts was not a matter, it would be removed, as the chart is reflective of the discussions. In
terms of orphaned works, the Chair stated that it was similarly an important topic, but it might be
the case that after the discussion, orphaned works should be a part, or separately treated as
another item from the chart. The Chair expressed that it tried to reflect what was submitted.
123. The Delegation of the European Union and its Member States wished to repeat what it
had already shared in its opening statement. The Delegation thanked the Chair for the
preparation of the chart, which it believed that the discussions on the basis of the chart would
most useful if they were focused on the exchange of best practices, with the goal to find efficient
solutions whether by national limitations and exceptions or licensing under the current
international treaties.
124. The Delegation of Turkey thanked the Chair for the chart and Professor Seng for the
study. The Delegation stated that it was ready to discuss the chart, however, since it had just
received it, it would analyze it carefully and then come back with comments. The Delegation
expressed that it would be better to discuss the chart on the basis of national experiences.
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125. The Chair reminded the Committee that it had engaged in a discussion using a similar
chart on exceptions and limitations for libraries and archives. The Chair expressed that there
would be grounds to share what each delegation wanted to share in the discussion of each
topic.
126. The Delegation of Chile thanked the Chair for its presentation, based on the lengthy study
by Professor Seng. The Delegation stated that as it had just received the chart, it had not yet
had an opportunity to make a substantive study of it. The Delegation stated since the chart
included additional topics that had not been covered by Professor Seng's study, it would
imagine that the title of the chart might change to reflect the topics that were not considered by
the study. The Delegation was happy to have a basis for continuing discussion.
127. The Delegation of South Africa thanked the Chair for the chart which it believed would be
a useful tool. The Delegation stated that it was glad to see that the chart was building on data
gathered Professor Seng's study. The Delegation supported the Chart as the basis for future
discussion.
128. The Chair stated that it wished to recall some of the specific suggestions to cover some of
the topics that were contained only in Professor Seng's study. The Chair stated that the chart
deserved further consideration that was reflective of the same efforts given to the framework for
libraries and archives. The Chair stated that on the chart for libraries and archives, first the
Chair presented or submitted a chart, and then there was discussion on list of topics, and finally,
the Chair was given the opportunity to update that list, based on the discussion, and thereafter,
the Committee entered into structured discussions, topic by topic. And the discussion of each
topic, there was an opportunity for the Chair to somehow summarize that discussion. The Chair
stated that the chart was reflective of the submitted suggestions related to the chapeau
paragraph of the previous charts. The Chair stated that it was just making a reproduction of that
chapeau which had the delegations as the co-authors. The Chair invited the delegations to
submit their comments on the list, then to engage in the discussion topic by topic, which it
stated would be rich and filled by different opinions and views that would give a concrete idea of
each one of those topics. The Chair stated that perhaps at the end, not all of the topics would
remain. Some of the topics would be removed after conclusions or interesting opinions, and
moving forward with that substantial discussion would enable NGOs to be prepared, topic by
topic.
AGENDA ITEM 6: LIMITATIONS AND EXCEPTIONS FOR LIBRARIES AND ARCHIVES
129. The Chair announced that for reasons of clarity, it did not close Agenda Item 7 related to
limitations and exceptions for educational and research institutions and persons with other
disabilities. The Chair stated that it had started with that agenda item because of Professor
Seng’s presentation and that NGOs who wished to share a statement on the topic of exceptions
and limitations for educational and research institutions and for persons with other disabilities,
could share their statements the following day.
130. The Chair opened the floor for general statements regarding exceptions and limitations for
libraries and archives.
131. The Delegation of Nigeria, speaking on behalf of the Africa Group, stated that it would like
to start off by referencing its earlier general opening statement on exceptions and limitations.
The Delegation stated that that statement clearly expressed the view of the Africa Group on the
SCCR's discussion related to exceptions and limitations for educational institutions, including
libraries and archives. That statement also underscored the central role of such institutions in
the learning, creative, innovative and discovery process in life, and how the copyright system
afforded a balance between the interests of rights holders and public interests. The Delegation
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stated that on the issue of libraries and archives, the SCCR had had the opportunity to listen to
practitioners share their practical experiences on the difficulties encountered, in the effort to
fulfill their foundational role, of facilitating learning opportunities for all. Those practitioners had
also shared how those difficulties were due to impediments in the copyright system. It was for
such reasons that the international IP, intellectual property, system, allowed for exceptions and
limitations to enable the system to serve all stakeholders. The Delegation stated that it looked
forward to engaging in the four remaining topics contained in the Chair's chart and noted that
those last topics identified were part of the last topics identified as needful exceptions to
copyright laws, to enable libraries and archives to fulfill their role of facilitating knowledge that
built peoples and societies. The Delegation expressed that at the end of that discussion, the
Committee would need to hold frank and purposeful discussions on what would happen next.
The outcome of the SCCR's discussion had to be more than an exchange of ideas on national
experiences. It certainly would not assist libraries and archives to disseminate knowledge and
lifelong learning opportunities for all wherever they were as envisaged by SDG 4. The
Delegation urged the stakeholders and members to work together to support equal
opportunities for everyone. The Delegation stated that it looked forward to discussing document
SCCR/29/7 tabled by the Africa Group, and the Delegations of Brazil, Ecuador, India and
Uruguay as well as any new ideas that on exceptions and limitations for libraries and archives.
The Delegation took note of the proposal made by the Delegation of Argentina and stated that it
would continue to engage constructively and looked forward to a successful outcome of that
discussion.
132. The Delegation of Latvia, speaking on behalf of CEBS, stated that it took note of the
advancement of the discussions under that agenda item and that it looked forward to the
discussions on the remaining topics. The Delegation stated that it acknowledged the crucial
role played by libraries and archives, in social and cultural development. The Delegation
believed that those evidence based discussions facilitated the fulfillment of the public interest
mission by libraries and archives. The exchange of the best practices among different Member
States, on the implementation of the international legal framework, demonstrated that national
needs could be accommodated, whilst implementing the international copyright framework. The
Delegation expressed that those discussions highlighted the alternative approaches adopted by
the Member States, in order to elaborate a national legal framework, that integrated the local
needs, and that served as example, for other Member States of the Committee. The Delegation
expressed that as it had stated in previous SCCR sessions, the Delegation was not in the
position to support working on an international legal instrument in that area. The Delegation
stated that the different approaches set up by the Member States, the rich exchanges of the
best practices, and the studies presented to the Committee during the previous sessions, could
direct its work on the guidance of national implementation of international treaties.
133. The Delegation of Chile, speaking on behalf of GRULAC, stated that it supported a frank
and open discussion on the exceptions and limitations for libraries and archives. The
Delegation stated that the Committee’s discussions should offer effective solutions to problems
affecting libraries and archives around the world. The Delegation stated that it was very
interested in the debates on proposals submitted by the Delegations of Brazil, Ecuador,
Uruguay, India and the Africa Group. In order to promote work on that topic, the Delegation
stated that it supported further discussions based on the Chair's proposal. The Delegation
expressed that it too looked to the discussion on document SCCR/33/4 submitted by the
Delegation of Argentina. As a contribution to discussions on exceptions and limitations, the
Delegation stated that it wished to present a concrete case demonstrating the importance of the
Committee’s debates. In its discussion, the Committee had debated four themes on the
relationship between librarians, archivists and intellectual property. One of those themes was a
limitation on the responsibility of librarians and archivists. That example demonstrated the
importance of limitations and exceptions for the dissemination of knowledge, not only for
Member States, but also for the United Nations. The Delegation stated that its case example
was related to the origin of the United Nations charter. The UN charter of 1945 was one of the
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first international treaties to mention in its text the need for equal rights between men and
women. Although the inclusion of gender equality was for a long time attributed to diplomats
coming from developed countries, an investigation at the University of London revealed that,
that contribution was in fact the result of the mobilization of Latin American women in a
conference led by Brazilian scientist and diplomat, Berta Lutz. Upon the consultation of the
documents from that period, as well as the memoirs written by the few women who had
participated in that conference, researchers Elise Dietrichson and Fatima Sator concluded that
Latin American diplomats were responsible for including concerns of gender equality in the
charter of the United Nations. The Delegation stated that according to the researchers, the
explicit inclusion of gender equality in the United Nations, as advocated by the Latin American
delegates, initially faced strong opposition from diplomats. Based on the information provided
by the researchers on that project, Berta Lutz, with the help of the Delegations of Uruguay,
Mexico, Dominican Republic and Australia, and against opposition from the Delegation of the
United Kingdom, demanded the inclusion of women's rights in the charter and the creation of an
intergovernmental body that would go to promote gender equality. One of the main
contributions of such mobilization was in the preamble of the UN Charter, which acknowledges
the equal rights between men and women. The Delegation stated that even against opposition
coming from colleagues, who argued that the phrase "the human rights of men" was sufficiently
inclusive, Berta Lutz ensured that the word "woman" was included in the text. The Delegation
stated that that knowledge was only possible because of the digital work of archivists and
museologists in Brazil and the United Kingdom. While Berta Lutz's documents were not in the
public domain, the museum scientists at the Berta Lutz National Museum took the risk of putting
that information on the Internet. The Delegation expressed that Berta Lutz, who died in the
1970s, did not have the opportunity to grant licenses to preserve her memory. However, even
though they were working for the benefit of all UN Member States, the museologists and
archivists faced legal uncertainty. The Delegation stated that in the case presented, the legal
systems of more than one country were at stake as the works, subjects, reproductions, uses
and users, were subject to different legal systems. On the one hand, there were no exceptions
in some territories that allowed librarians and archivists to carry out that task. And while that
could be solved by updating the domestic laws of the States, there was always a risk that the
effects of reproductions necessary for the development of research valid in one country, would
be invalid in another. Those results were weak from the point of view of the universality of
knowledge. Hence, the Delegation stated that an international instrument must achieve a
common catalog of exceptions and limitations for the purposes of access to knowledge and
culture. That, along with some coordination rules that would allow the acts carried out by a
librarian or archivist, in his/her own country, to not be challenged in another jurisdiction. The
Delegation stated that it was grateful to the archivists and museologists who faced in the case
that it had shared, faced legal uncertainty, to provide input for scientific research. The
Delegation hoped that the work of the Committee would reduce problems in the intellectual
property system. The Delegation stated that it was also grateful to Berta Lutz, who by her
example, reminded everyone that whilst each country was responsible for its national laws,
international law was responsible of all men and women in all regions of the world.
134. The Delegation of China thanked the Secretariat for having carried out the work on
limitations and exceptions for libraries and archives. The Delegation expressed that libraries
and archives were very important for facilitating access to knowledge, and that frank and open
discussions on that topic were also very important for achieving a balance between the interests
of rightsholders and public interests. The Delegation stated that it was ready to share
information and experience in that area.
135. The Delegation of Turkey, speaking on behalf of Group B, stated that it could not agree
more with the important role that libraries and archives played in cultural and social
development. The Delegation stated that as the studies presented during previous sessions
had described, many countries had already established their own limitations and exceptions for
libraries and archives, which worked well based on the specific systems in the current
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framework. The Delegation stated that the work of that Committee should be shaped in a
manner that reflected that reality while complimenting the situation as it was. With regard to the
working methods, the Delegation stated that it was ready continue discussions based on the
Chair’s chart. The Delegation stated that it fully appreciated that the aim of the Committee’s
discussions was to reach a better understanding of that topic. The Delegation stated that the
Committee should not however, turn its yes away from the current situation, which was that no
consensus, for the time being, existed between the Committee for a normative work. In finding
a consensual basis, upon which all Member States could stand and work together, that should
be duly taken into account. The Delegation noted the proposal by the Delegation of Argentina
on exceptions for education and research institutions and for persons with other disabilities.
The Delegation stated that since the proposal had arrived shortly before that meeting, it looked
forward to the discussions of that proposal at the following session of the SCCR. Regarding the
limitations and exceptions for the libraries and archives, the Delegation highlighted the
objectives and the principles as proposed by the Delegation of the United States of America in
the document SCCR26/8 on the topic of limitations and exceptions for libraries and archives.
The Delegation believed that the document could compliment the work on limitations and
exceptions for libraries and archives. The Delegation stated that it would continue to engage in
the discussions on the limitations and exceptions for libraries and archives in a constructive and
faithful manner.
136. The Delegation of the European Union and its Member States stated that it would like to
reemphasize its belief in the indispensable function of libraries and archives for the
dissemination of knowledge, information and culture, and the preservation of history. The
Delegation believed that there was merit in discussing how a balanced international copyright
framework could enable those institutions to fulfill their public interest and mission and that as a
Delegation it was willing to continue to engage constructively in those discussions. The
Delegation expressed that as it had stated in previous sessions of that Committee, its favored
approach was one where work focused on how exceptions and limitations could function
efficiently within the framework of existing international treaties and where WIPO Member
States could take responsibility for their own national legal frameworks, supported by an
inclusive exchange of experiences and best practices, and when necessary, the assistance of
WIPO. The Delegation noted the proposal by the Delegation of Argentina concerning limitations
and exceptions for libraries and archives and exceptions for educational and research
institutions and for persons with other disabilities. The Delegation stated that because the
proposal arrived very late, it needed more time to understand it better. The Delegation believed
that the sharing of best practices, and their efficient exchange, would be of optimal benefit for all
WIPO Member States. The Delegation stated that like in the past, it believed that a meaningful
way forward would be to focus on a thorough and systematic understanding of the problems
faced by libraries and archives against their needs, giving full consideration to the solutions
provided by innovation and relevant markets and those available under the current international
framework. The Delegation stated that it could not support working towards a legally binding
instrument, but that a possible outcome of the discussions could be guidance regarding the
national implementation of international treaties in that area.
137. The Delegation of Iran (Islamic Republic of) believed that that limitations and exceptions
constituted an integral part of copyright law and that they were critically important in creating a
balance in the international copyright system, with a view of producing creativity, increasing
educational opportunities and promoting inclusion and access to cultural works. The Delegation
believed that those matters were as significant to individuals, as they were to the collective
development of enlightened societies. Exceptions and limitations had an important role to play
in the accomplishment of the right to education and access to knowledge, actualization of which
in many countries was hampered due to lack of access to relevant educational and research
materials. Those facts constituted the rationale behind the decision of Member States to
create a standing agenda item on limitations and exceptions in the SCCR. The Delegation
stated that the existing limitations and exceptions envisioned in the current international
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copyright treaties, did not sufficiently address merging technology and cultural changes. The
Delegation stated that those shortcomings had to be addressed. The Delegation stated that it
was of the conviction that pragmatic norm-setting solutions were essential in moving toward a
balanced international copyright law for the benefit of rightholders and public policy issues. The
Delegation stated that it strongly supported establishing a legally binding international
instrument for limitations and exception for libraries and archives, as those institutions were
important in providing people with access to information. The objective of that instrument was
to strengthen the capacity of libraries and archives, to provide access to and enable
preservation of library and archival materials, to carry out their public service role. The
Delegation expected the Committee to make progress on the text-based negotiations, according
to the mandate given to the Committee by the General Assembly in 2012.
138. The Delegation of Nigeria aligned itself with the statement it made on behalf of the Africa
Group, with respect to that agenda item. The Delegation stated that the subject matter of
limitations and exceptions for libraries and archives was very important to the delegation. The
Delegation believed that the adoption of a binding instrument at the multilateral level had great
potential for global access to information and knowledge. As discussions on that subject in
previous sessions of that Committee had already indicated, there were indeed critical issues
that needed to be addressed at the global level. The Delegation stated that libraries and
archives continue to fulfill their traditional function as facilitators of research, particularly given
the emerging challenges of the digital environment and pertinent copyright concerns. There
was therefore need for the Committee to focus discussions on finding solutions to those
pertinent issues, in a systematic and coordinated approach. The Delegation stated that it had a
preference for a text-based discussion on the proposed text of document SCCR/26/3 and
document SCCR/29/4, prepared by the Delegations of Brazil, Ecuador, India, Uruguay and the
Africa Group. The Delegation supported the call for regional workshops on limitations and
exceptions and for such meetings to include limitations and exceptions for education, teaching
at research institutions, in order to engender greater understanding. The Delegation stated that
it remained committed to engaging with other delegations in advancing the Committee's work on
that agenda item in that session.
139. The Chair requested that NGOs give specific statements related to the four topics that
were being discussed. The Chair opened the floor to NGO statements.
140. The Representative of SAA stated that what it wished to share was directly related to the
topic of limitations. The Representative stated that current technology enabled individuals to
have global impact, but the risk of litigation held them back from the digital age. The
Representative stated that archives were a mystery to most people and that once people
recovered from the shock that archivists were not some sort of gnomes, trolling around in the
dark, they ask, "what was the archivists most important document"? The Representative stated
that it dreaded that question as everything it had was valuable to somebody somewhere. The
Representative expressed that although most archives had a few such valuable treasures, they
were not central to their responsibilities; rather, archives existed to preserve everyday letters,
reports, photos, computer files, memoirs, and so on. They were not locked away as treasures,
instead, they were openly available for research and study. It was those everyday items, such
as a soldier's letter home during war time, that collided with copyright's monopoly. As
professionals, archivists were committed to protecting everyday people's rights, but the strict
adherence to copyright undermined the reason archives had such collections, that is, research
access. The Representative stated that as was stated in UNESCO's declaration on archives,
"open access to archives enriches our knowledge of human society, promotes democracy,
protects citizens' rights and enhances the quality of life." That was why the Committee needed
an international legal regime to limit liability for doing what must be done to fulfill the mission
that society had assigned to archives. The Representative stated that archivists were not
asking for free reign, but assurance that doing their basic work would not expose them to costs
of legal fees or penalties, thus exhausting the meager budgets that they had. Without
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exceptions, archivists had only two unacceptable options: to abandon concern for copyright, or
to be excessively cautious, both of which undermined its mission. The Representative stated
that it needed a safe harbor to perform its work in good faith. The Representative stated that
such a tool should provide a limit on litigation, freedom from criminal liability, and should limit
civil remedies to injunctions. Accounting for both rightsholders and archivists' interests, the
Representative stated that such a tool should provide a baseline definition of eligible archives,
limit the exception to noncommercial activities and require a basic assessment of the presence
of works subject to normal commercial exploitation. The Representative stated that archivists
were at a crossroads where they care about copyright, but were also ready to ignore it, if the
chance of a lawsuit was slim. The Representative shared an example that if one woke up in the
middle of the night and found a bat in his/her bedroom, the chance that he/she had actually
been bitten while sleeping would be very small, but the consequences of being wrong on that
would be immense; namely, rabies and death. A rabies injection would protect against that
scenario. Similarly, limitations on liability for archival work would free archivists from facing risks
that block their mission.
141. The Representative of IFLA stated that it wished to address the Committee as a library
school dean, educator and frequent speaker to librarians on legal topics. The Representative
stated that copyright education was an integral part of the library school curriculum and
in-service training. As a result, librarians and archivists strived to be compliant with the law in all
aspects, especially copyright law, which resulted in librarians and archivists not being very risk
tolerant. The Representative stated that that was compounded by the reality that in many
Member States, direct liability in copyright law was a strict liability law. Because of those
concerns, librarians and archivists often avoided uses. As with orphan works, that avoidance
was not in the public interest. The Representative stated that copyright laws were complex, and
as the reports of both Professor Crews and Professor Seng had demonstrated, the law varied in
objects, scope and application. Moreover, libraries and archives found themselves dedicating
ever more time to legal questions. As mentioned before, librarians and archivists were trained
professionals; however, the average librarian or archivist was not a lawyer, and with the
exception of those working in the largest institutions, they did not have access to legal counsel
for instruction in the intricacies of the copyright law which the often faced on a daily basis. The
Representative stated that considering the digitization projects, that preserved and provided
access to cultural heritage, as was documented in Professor Crews’ report, the majority of
countries surveyed did not exclusively permit digital preservation. That could be because the
law did not mention preservation in specifics, and allowed only for one or two copies, whereas
digital preservation often required greater redundancy, as technologies improved and creators
and users migrated to those new technologies. Moreover, many libraries and archives were
undertaking digital preservation in response to government mandates, sometimes risking
infringement in order to fulfill that mandate. The Representative shared that in one instance, an
archivist conducted a diligent source for rightholders of a collection of letters of soldiers before
the Korean War, before deciding to digitize the documents for an online anniversary exhibition.
Subsequently, a family member came forward to threaten litigation for unauthorized use. In
another example, a librarian provided a copy of an unpublished work to a researcher who
subsequently quoted it in a publication. The library was added as a defendant to the initial court
complaint filed against the researcher. Additionally, libraries and archives faced challenges
regarding secondary liability based on the actions of patrons. Libraries and archives often
provided guidance or training concerning permissible uses, posted appropriate copyright
notices, and were conscientious about removing or disabling access to materials found
infringing, once aware of the infringing nature of their content. However, given the limited
resources and the lack of legal expertise, or access to immediate legal counsel, it was
impossible to achieve complete compliance and preclude all potential instances of infringement.
In order to reduce the uncertainty in determining whether a particular use was infringing or not,
librarians and archivists acting within the scope of their duties, and in good legal faith, who had
reasonable grounds to believe that they were not committing or contributing to an infringement,
should not be held liable for inadvertent transgression. A limitation on liability provided
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librarians and archivists valuable legal breathing space in their day-to-day work. Given that
librarians and archivists often worked on collaborative works from a variety of geographic
origins, an international instrument was necessary. Where second heir was permitted, the
Member State should also be released of liability, resulting in the infringing acts of their patrons.
142. The Representative of Electronic Information for Libraries (eIFL.net) stated that limitation
on liability was an important provision for information professionals who were every day
involved in the practical application of copyright exceptions. The Representative stated that the
issue was that librarians strived to comply with the law as they needed to understand and apply
the law as part of their daily work. Indeed, they were often the first source of information on
copyright for their users, and within their institutions, yet few librarians had the benefit of formal
legal training, and most did not have access to specialized legal advice. The Representative
gave an example that in a survey of 35 academic and public libraries in Serbia, not a single
institution had access to professional legal support. Representative stated that a new resource
developed by EIFL, the court libraries checklist, helped librarians determine their domestic law
activities. The Representative stated that what it found from its use was a widespread
uncertainty around what the law may or may not allow, especially when technology was
involved. From the evidence, it was easy to understand why. The WIPO study on limitations
and exceptions for libraries and archives revealed a crazy complexity in the application of
copyright exceptions across jurisdictions. The conditions included who may copy, what may be
copied, with what conditions, and how items may be copied. And as almost no countries had
addressed cross-border issues, the cross-boarder transfer of content was before electronic
resources were copied in. The Representative stated that even copyright lawyers sometimes
found it difficult. The Representative expressed that a limitation on liability would enable
librarians acting in good faith, and having reasonable grounds, to believe that they had acted in
accordance with the law to take full advantage of the scope and opportunity of exceptions
intended by the legislator. The Representative stated that if a librarian or archivist can be held
personally liable in the case of an innocent misinterpretation of the law, then the effect on
access to knowledge was chilling.
143. The Representative of the German Library Association stated that it was speaking as a
lawyer working in one of the biggest research libraries in Germany. Copyright codes were
becoming extremely complicated and that was especially true for copyright limitations and
exceptions. The Representative gave as an example Article 53 of the German Copyright Code
which in discussing making copies for private research and archive copies, was extremely
detailed. It had seven paragraphs and filled a whole page and there were several dissertations
about only that statute. The Representative asked how a librarian, whose duty was to make
copyright protected materials accessible to researchers and to public in their daily work, always
know what was legal and what was not. The Representative stated that many times, lawyers
themselves could give absolute clear answers. The Representative stated that not every
librarian had a lawyer sitting beside them all day and that there were more reasons why library
exceptions are extremely difficult to deal with. Germany had exceptions for document delivery,
for digitizing and making available works on dedicated terminals, and the reading room, and for
making available parts of works for student classes. Those exceptions were fixed in Germany’s
copyright Code. When libraries began to make use of those exceptions, they were for years
confronted with deep and detailed legal discussions and lawsuits up to the European Court of
Justice. Additionally, there had been and were still ongoing on negotiations about
remunerations and further conditions about the use of the works within the scope of the
exceptions. The Representative stated that those were statutes that were already eight years
old. In all that time, those exceptions simply did not work properly. As a consequence of all
those uncertainties, libraries found themselves in a legal limbo on whether they could make use
of the exceptions or not. The Representative stated that they were used, but only on a very low
level as if libraries made use of them, they took the risk of being sued. The Representative
stated that a limitation of liability would help libraries fulfill their purpose within that uncertain
frame of limitations and exceptions. On cross-boarder situations, with respect to all those
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uncertainties at the national level, the Representative asked how any librarian could sure about
conditions in other countries if they sent a copy across a border. In Germany, there had been a
lawsuit that lasted between 2002 and 2007 because of document delivery. It left the libraries
uncertain about sending copies to countries other than Austria and Switzerland. The
Representative stated that since then, without licensing in a cross-boarder situation, if they
delivered, they only delivered copies on paper. The Representative stated that limitations of
liability on gross negligence or maybe another good measure could be the mutual recognition of
national exceptions that could help. That had to however to be fixed in international
agreements.
144. The Representative of the European Bureau of Library, Information and Documentation
Associations (EBLIDA) stated that librarians were governed by professional code of ethics
which included respect for copyright law. The Representative stated that IFLA's code of ethics
stated that librarians and other information workers realize the intellectual property rights of
authors and other creators, which it worked to ensure that their rights were respected. The
Representative expressed that libraries, archives and museums were major institutions that
wanted to comply with the law, and needed to protect their good names and reputations. Yet,
when dealing with copyright law, they had to put themselves on the line for the public interest
without sufficient legal protection. The Representative stated that national laws and court
rulings led to a sprawling jungle of interpretations within many Member States, only which were
able to reach a resolution in the European Union Court of Justice. The Representative
expressed that the staff of libraries and museums were not trained lawyers. The majority of
those institutions could not even afford to retain lawyers, who would help them sort out the
complex requirements of copyright law including individual requests to display works from their
collections, or the methodization of means of works. The Representative stated that for libraries
and museums, work, knowledge and information were increasingly accessed through licenses
that were often operated under foreign jurisdiction, adding further complexity to the legal
framework that applied to the work of librarians, in particular. Two examples from the European
Union testified to the need to limit liability for librarians, archivists and museum professionals.
The Representative stated that the Information Society Directive of 2001 listed 20 optional
exceptions, which the Member States of the European Union could pick and mix at will, and
implement in 31 different variations, at the national level. The Representative stated that it was
impossible for librarians to provide answers to researchers’ requests and inquiries into what was
allowed in the different countries concerned. The Representative stated that such uncertainty
can cause institutions to unnecessarily refuse requests, for fear of exposure to potential claims
of copyright infringements. On orphan works, the Representative stated that in the European
Union, there was legislation on clearing rights, for potentially orphaned works so that they could
be registered and declared officially orphaned. The Representative stated that despite that, the
legislation didn’t provide full indemnity for European libraries, archives and museums if the
grandchildren of owners appeared out of nowhere, claiming copyright infringement. The
Representative stated that it was only fair that exceptions for libraries, archives and museums
were underpinned by a limitation on liability, with regard to good faith, noncommercial activities
of librarians, archivists and museum professionals, so that they could safely carry out their
public interest mission, with the knowledge that they were protected from liability for inadvertent
or unintended copyright infringement.
145. The Representative of IFJ stated that the world needed ethical journalism. Despite the
failings of some newspapers, the work of individual, independent journalists remained the best
bulwark against arbitrary power and the gaining of that power through a mixture of falsehood
and rumor amplified by the echo chambers of electronic gossip. The Representative stated that
its ability to make a living, writing and editing reports on science and technology in London,
depended on the strength of authors’ copyright laws. The Representative of stressed the need
for professional authorship and stated that the promise that the Internet era would usher in a
golden era of democracy, had proven hollow. The Representative stated that the exchange of
prejudices and lies through social media was not true or useful free expression. Citizens of all
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countries needed to have the chance to be informed, through the work of individuals who were
committed to building the skills and experience that evaluated claims, and unmasked falsehood.
The Representative stated that those people, those journalists in particular, needed to have the
economic security that enabled them to stand up to power, including, where necessary, that of
newspapers and broadcasting owners. The Representative expressed that the fact that the
publishing industry has been badly hurt by the Internet revolution, was not well known, because
publishers have managed to maintain some influence. The industry has particularly been hurt
by Internet corporations that have garnered a fortune, selling advertising alongside other
people's creative work. The Representative stated that how to get those corporations to pay for
the use of that work, that prime raw material, had been a challenge that was causing head
scratching in the European Union. The Representative appealed to the Committee that it
should not to be swayed by the promise held out by some, that opening up creative work for use
without remuneration, offered some kind of golden era of free information. The Representative
explained that the risk was that free information ended up being worth every penny. The
Representative stated that yes, libraries, archives and educational institutions should have the
legal certainty they needed to play their utterly essential part in insuring an informed citizenry.
The Representative stated that there ought to be an insistence, throughout the world, that those
vital institutions should be adequately funded. The use that libraries made of authors' works
should be compensated because as libraries moved online, they formed partnerships with
certain Internet corporations, which made their activities appear closer and closer to publishing
in some respects, a move that affected the income of authors. The Representative stated there
should be an insistence that remuneration should be delivered to authors through collecting
societies. The Representative stated that the Committee should commit to encouraging the
formation of transparent and democratic collecting societies everywhere. The Representative
stated that useful information depended on authors having adequate primary income from
individual uses as well as uses by libraries and schools. The Representative expressed that the
proposed new European Union directive, securing more transparency in the way authors' works
were exploited by their publishers, producers and broadcasters, was a step in the right direction.
The Representative stated that the Committee should be inspired by that work on transparency
and that it should rededicate itself to enabling "innovation and creativity for the benefit of all."
The Representative stated that without the work of skilled authors and performers, libraries had
nothing to share, schools had nothing to teach, and that that Committee had nothing to discuss.
The Representative stated that the Committee needed to refocus and support creativity.
146. The Representative of the International Council on Archives (ICA) stated that archival
institutions had two primary roles, to preserve materials in their care, and to make those
materials available for study and research by everyone, no matter what they wished to study or
who they were or where they were. The Representative stated that in both roles, archives
engaged copyright. The Representative expressed that when an archive served an individual
user by supplying a copy of a copyright work, in accordance with any relevant exception
permitting such activity, liability for any unlawful use of that had to rest with the user, not the
archives. Stated more broadly, where Copyright regimes provided for secondary liability,
archives and libraries had to be exempt for liability from the actions of their users. However,
archives also engaged copyright when they performed functions that served the broader public
interest, to benefit many users or to safeguard the records themselves. The Representative
stated that an example of that was when archives made preservation copies of fragile originals
or when they massively digitized information to make records available online. In that process,
an archive was a user of its own resources, and the professional principles and codes of ethics
that undergirded archival work required the archives to take reasonable steps to protect the
interests of the rights owners of the works in their collections. The Representative stated that its
own doctoral research clearly demonstrated that fear of legal liability had made North American
archivists extremely cautious when selecting what was made available online. Those archivists
chose only holdings in which they owned the copyright or in which the copyright had expired.
Consequently, their online offerings were but a fragment of the archives’ rich holdings which
may not be what best served users' interests. The Representative stated that the information
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service, to which the public was entitled, was greatly diminished; therefore, archives and
libraries required limitations on liability for their actions that were subject to certain conditions.
The Representative stated that for the application of limited liability, the contravening action had
to be for non-commercial purposes and the archives had to be able to demonstrate that it acted
in good faith with no reasonable ability to identify or locate the rights holder. The
Representative stated that in those circumstances, remedies had to be limited to civil penalties
such as an injunction to remove specified material from an online service or to cease the
infringing action, so as to limit the amount of damages, based on the actual economic harm
suffered by the rights holder. The Representative stated that such a limit on liability would
enhance the range of online offerings and would equip archivists to better serve society.
147. The Representative of the Library Copyright Alliance (LCA) stated that in the United
States of America, there were two important limitations on damages liability for libraries and
archives. Those limitations were important because statutory damages could be so large, up to
$150,000 per work infringed. The Representative stated that a relatively modest mass
digitization project involving 10,000 works could lead in theory to 1.5 billion dollars in statutory
damages. The Representative expressed that an important limitation in the Copyright Act
provided that a court could reduce the statutory damages to zero, where a library or archive or
its employee, were acting within the scope of his/her employment, and believed and had
reasonable grounds for believing, that his/her use of the copyrighted work was a fair use. The
Representative stated that that was a great limitation, but that it unfortunately only applied to the
infringement of the reproduction right. Therefore, in a digital environment, the Representative
stated that it was not clear how useful that exception was, a notion that implicated the
performance or the display right. The Representative stated that the second limitation, which
was more general, was the concept of sovereign immunity, under which a public institution can't
be sued for damages without its consent. The Representative stated that those two limitations
provided libraries and archives in the United States of America with the confidence to engage in
digitization projects, particularly of archival material, and special collections. The Representative
stated that librarians and archivists in other countries should enjoy similar limitations.
148. The Representative of the Archives and Records Association (ARA) stated that archives
record decisions, actions and memories, but without access and consequent research, their
value to society was diminished. The Representative stated that archivists had a dual
responsibility, on the one hand, to the creators of records to ensure their good management;
and on the other hand, to researchers to enable them to carry out their research, which in turn
enriches the cumulative knowledge of human society. The Representative stated that archivists
were facilitators who worked with both record creators and researchers, to create access for
research purposes, which in turn was for the public good. The Representative expressed that in
the midst of that wave of responsibilities, was the question of liability and the potential for
copyright infringement. There was a requirement for a defined safe space in which archivists
could interact with researchers, without undue fear of liability of copyright infringement. That
limited liability safe space had to accommodate both the archivist making copies on behalf of a
researcher, and the researcher making sales service copies for him or herself, often using a
digital camera. The Representative stated that there should be no liability resting with the
archivist, as either the provider of copies or of the research space. As long as the archivist
could demonstrate that he/she acted in good faith and had no reason to make copies for a
purpose that was beyond a legally defined exception, liability for any unlawful use should rest
with the end user, the researcher. The Representative expressed that archivists recognized
that in return for the existence of limited liability and a safe space, the boundaries of the space
needed to be carefully delineated. The Representative state that out of that safe space were
going to be actions that an archive carried out on behalf of more than one user, for instance, a
mass digitization project. The Representative stated that beyond the scope of such a limited
liability safe space would be the supply of a copy of an archival item for a commercial purpose.
The Representative expressed that without unlimited liability safe space, archivists and archival
research would cease to function. Equally archivists recognized that limitations on liability could
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be a get-out of-jail-free card, therefore in the United Kingdom for instance, as a part of the
membership to a professional body, archivists had to sign to a code of conduct which
recognized the need to work within the boundaries of the relevant legislation.
149. The Representative of the Scottish Council on Archives (SCA) stated that archivists took
copyright law very seriously. The Representative stated that archivists were law-abiding
people, with strong professional ethics, who often found the copyright regime complicated,
confusing and intimidating, especially within an international context. The Representative
expressed that few archivists enjoyed the benefit of formal legal training, with most archives not
really having the financial resources to pay for specialist legal advice. The Representative
stated that research indicated that archivists worried copyright, the threat of litigation and
whether or not they were acting lawfully. The Representative stated that archivists also worried
about the reputational damage to their institution and to the archive profession, as a result of
inadvertent or unintended copyright infringement. The Representative expressed that it was
easy to understand why archivists and librarians worried, as they aimed to work within the law,
and wanted with certainty that they were in fact acting within the law. The Representative
stated that archivists and librarians were concerned about fairness, whether they were fair
dealing or fair practicing, and reasonableness, for example, reasonable inquiry. The
Representative stated that they often remained an element of doubt in the mind of the archivist,
whether reliance on the exception was lawful or not. That element of doubt often triggered an
unwillingness to rely upon, and benefit from, those lawful exceptions. The Representative
stated that that was why exceptions alone were not sufficient. They had to be accompanied by
a limitation on liability, a safe harbor that empowered archivists and librarians to have
confidence in their own good faith interpretation and application of the law. A limitation
establishing that when archivists and librarians acted in good faith, believing that they had acted
in accordance with the law, they would not be held liable for inadvertent or unintended copyright
infringement. Such a provision would enable archivists and librarians to take full advantage of
the scope and opportunity, which copyright should afford. The Representative stated that
libraries that did not have a provision of liability run the risk of undermining their own value and
worth. The Representative stated that limitation on liability could take a variety of forms, for
example, the United Kingdom copyright regime makes it clear that a librarian or archivist was
entitled to rely upon the declaration from a user requesting a copy of material, as evidence that
the material was being requested for lawful purposes. If the user had made a false declaration,
liability for infringement lay with the user, and not with the librarian or archivist. The
Representative stated that another recent example was provided by the government of
Singapore. The government of Singapore had considered limitations on remedies as a possible
solution to the orphan works problem. Under their proposals, archivists and librarians would be
eligible for limitations on remedies if they could demonstrate that they had met specific
requirements within the legislation and had acted in good faith for noncommercial purposes.
The Representative suggested that there were various ways in which limitation on liability could
be included in an international instrument, but reiterated that it was essential that it was included
so that archivists and librarians could use the full scope of the exceptions they had available to
them.
150. The Representative of African Library and Information Associations and Institutions
(AfLIA) stated that though few, Africa's librarians were professionals who worked hard to make
the best of the inadequate copyright system, to achieve their missions, and that they deserved
support. The Representative stated that it was glad to see two of its supporters, the African
Union and IFLA. The Representative thanked the Delegation of South Africa for its ambition
and leadership in the passing of the Cape Town declaration, which clearly affirmed the
expectations from libraries in the provision of access to information for development. The
Representative stated that what librarians did not deserve was to be treated as criminals when
they made an honest mistake. The Representative stated that when there was no principle of
limitation of liability for libraries on its continent that was the reality. The Representative stated
that if laws were clear, then there would be little need for lawyers. As lifelong university
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librarian, the Representative stated that it had faced many situations where the law simply was
not clear. For example, if an English speaking medical researcher needed urgent information
that would go towards the saving of lives, and the only available information was written in
Chinese, the law was unclear about permissible and impermissible translation. The
Representative stated that the librarian would go for the translation, but that would be an honest
mistake and should not land the librarian in legal complications. The Representative stated that
in an institution running on a shoe string budget, legal action could be fatal especially since the
threat of legal action was no idle one. The Representative stated that that prevented libraries
and users from making the most of the opportunities they had. Therefore, when in doubt,
librarians would turn to say no and the student or researcher would be deprived of legitimate
access to information. The Representative stated that there was need to move away from the
belief system that saw every librarian user as a potential offender. The Representative
expressed that the librarians acting in good faith, and with strong reason to believe they were
doing the right thing, should not be faced with fines or prison terms. The fight against piracy
would not be won if librarians, who were key partners in delivering a balanced, legitimate,
sustainable copyright system, were first in the firing line.
151. The Representative of the International Council of Museums (ICOM) stated that as it had
mentioned in previous interventions during previous SCCR meetings, ICOM was in full support
of its partners, libraries and archives, in their request to advocate successfully for international
exceptions to copyright for activities consistent with their respective preservation and scholarly
communications' missions. The Representative stated that ICOM wanted to take the
opportunity to advocate that museums, too, should be added to the list of beneficiaries of
copyright exceptions now proposed for libraries and archives in the SCCR, and that included
limitations on liability. The Representative stated that that position was consistent with the
findings of WIPO's own museum study, and was proposed in agreement with the IFLA and the
ICA. On that basis, ICOM wished to also advocate for limitations on liability. The
Representative stated that museums carried out scholarly communications in an environment
where museums were expected to carry out such activities both in the online environment, in
digital form, and on their own physical site. The cross-border nature of such activities, coupled
with the characteristics of museum collections that included extremely diverse materials,
unpublished works, whether scientific, historic or artistic, and even orphan works, including
different media, posed significant copyright and access challenges in meeting the expectations
of the 21st Century scholar. Therefore, the Representative stated that the chance of inadvertent
transgression became very high, as those challenges museums faced were the same as the
challenges faced by libraries and archives. The work of libraries, archives and museums was
remarkably similar. Museum collections included study collections, archival materials and
library collections, and museums engaged in scholarly pursuit and communication similar to
libraries and archives; in addition, libraries and archives often held object and artifact collections
similar to museums. The Representative stated that similarities of practice between archives,
libraries and museums were already recognized by WIPO Member States. The Representative
stated that Professor Crews, in his study on exceptions for libraries and archives, recognized
that 44 WIPO Member States had also included museums as beneficiaries of those exceptions.
For those reasons, representatives of the libraries were in agreement with ICOM that it was time
to examine those issues holistically and add museums to the list of beneficiaries proposed for
exceptions to copyright. The Representative stated that as was articulated in a meeting at
Columbia University, the contemporary expectation was that libraries, archives and museums
had to be where the scholar was no matter where the scholar may be situated physically. It was
not enough anymore to expect scholars to come to the libraries, archives and museums.
152. The Representative of the International Association of Scientific Technical and Medical
Publishers (STM) stated that STM's position on copyright protected uses of orphan works was
published in December 2006 and included provisions to the effect that users who had not been
able to identify, locate and contact the copyright owner, to obtain permission, despite a diligent
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search, must not be penalized if the rights holder came forward at a later date. The
Representative stated that an STM signatory statement had offered a safe harbor, with respect
to the users of works considered to be orphan works, which were discovered to be works in
which the signatories comprising the largest STM publishers, own the copyright. The same
principle, namely that anyone who had conducted a reasonably diligent search could not be
penalized, was expressed in a 2007 joint statement between the International Publishers
Association (IPA) and IFLA. The Representative stated that STM continued to advocate for that
principle, both in the public fora and in the publishing industry. The Representative stated that
based on its experience, licensing also supported library document delivery services, resulting
in the question of the liability of libraries not even coming to the fore. The Representative stated
that with the main interest of publishers being, in broadest sense, the possible dissemination of
works that they publish, STM believed that there was more scope for licensing in resolving that
problem.
153. The Representative of KEI thanked the Delegation of Chile for the very interesting
example concerning the work that the Committee was carrying out. The Representative stated
that in terms of limitations for liabilities for libraries and archives, in order to ensure that society
was well informed of its history, and to ensure that the present and recent past did not
completely disappear, it was very essential that archivists and librarians carried out their public
interest mission in a responsible and careful manner, without risking liabilities and lawsuits in
the case of honest mistakes.
154. The Representative of the Karisma Foundation stated that the realities of libraries and
archives in Latin America was that there was a clear lack of human resources, financial
resources, technical resources and infrastructure, and often there were legal barriers which
obstructed the work of institutions. Due to that, often those institutions were forced to deny
basic services to users, such as interlibrary loans or cross-border loans. The Representative
stated that those issues developed into obstacles to the exercise of rights to information, to
knowledge, to culture, to education, which all persons had the right to. The Representative
stated that in 2011, for example, several public universities and private universities in Colombia
had received a letter of cease and desist from a collective management organization, which
represented producers and distributors of audiovisual materials. The letter stated that libraries
could not lend films in their catalog to students because they did not have the licenses and that
they were not authorized to do so. The Representative stated that some university libraries,
instead of starting negotiation processes with that collective management agency, started to
defend the rights of the users to view those films as educational material. Nevertheless, other
institutions decided to cancel those loans and adopted what was an absurd practice. Access to
those resources became limited to teachers and professors for a certain number of hours and
just for their classes. The Representative stated that that was a very complex and costly
process. The Representative expressed that in another case, an audiovisual organization was
at a crossroads when an indigenous group in the northern part of Mexico requested for a copy
of archives, in order to ensure their economic cultural, religious and social rights in the territory.
Specifically the group had asked for an old Spanish fictional film containing unique images of
historic points in their history. The organization did not have the copyright to give a copy of that
archive to them. Despite that, the indigenous people decided to make use of those images in
their documentary, because they were convinced that they had a right to do so as their
community was represented in that film. The Representative stated that it could continue to
share more examples or more details about how those obstacles, for example how, around 20
or 30 copies of a Colombian novel had not been to be given to students and direct victims of
Colombia’s conflict who had wanted access to it, to carry out academic work whose main aim
was to help rebuild their communities and societies. The Representative stated that another
example would be one of a group of prisoners who were refused the rights to educational
information as the only access they had was to a public library which collaborated with the
prison service and the only way that that library had of obtaining works was through electronic
copies and were able to do so. The Representative stated that it was as if economic
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instruments prevailed over and above the enjoyment of people’s right to culture and to
education. That had important effects on library and archive loan services, in particular, in
enhancing knowledge and information. The Representative stated that the Karisma Foundation
believed there was a lack of a treaty, which recognized the liabilities and responsibility of
archives and libraries to ensure they could act in good faith.
155. The Delegation of Ecuador stated that it agreed with the statement delivered by the
Delegation of Chile, on behalf of GRULAC, and would like to refer to the topic of the liabilities of
libraries and archives to say that copyright legislation was not fully understood and known by
libraries and archives throughout the world. The Delegation stated that fact had already been
mentioned by several organizations in the Committee. The Delegation stated that the
responsibility that those organizations had for authorized copies, which was made publicly
available, needed to be limited because use by third parties should not be the responsibility or
liability of archives or libraries.
156. The Delegation of Nigeria, speaking on behalf of the Africa Group, stated that, the digital
age had changed how information was exchanged and used. Librarians and archivists, while
they were information professionals by reason of their work, were not lawyers and could not
unpack the complex copyright laws, when trying to fulfill their fundamental role of facilitating
access to knowledge. The Delegation stated that it was in support of the idea that libraries and
archives needed to be able to fulfill their public interest role, free from fear of legal action and
crippling costs if they made an honest mistake. The Delegation believed that the experiences
that had been expressed by libraries and archives adequately informed the need for a limit on
liability for copyright infringements, when the undertaken activities were in good faith.
157. The Delegation of Brazil aligned itself with the statement delivered by the Delegation of
Chile, speaking on behalf of GRULAC. The Delegation expressed that it was its hope that the
story about Brazilian diplomat Berta Lutz inspired the Committee. Over the years, the
Delegation of Brazil and other countries had stressed the crucial importance of libraries and
archives for the goal of public and universal education to be achieved. The Delegation stated
that it was the view of the Delegation of Brazil that librarians and archivists acting within the
scope of their duties should not be liable for copyright infringement, when the alleged action
was performed in good faith. The Delegation stated that the Committee needed to define that
term. The Delegation stated that based on the proposal co-sponsored by the Delegation of
Brazil, good faith should be assumed to exist when there were reasonable grounds for believing
that: A, the work or material protected by related rights was being used as permitted within the
scope of a limitation or exception or in a way that was not restricted by Copyright or, B, that the
work was in the public domain or under an open content license if it was found in a protected
format. In addition, it was important to ensure for those Member States which provided for a
secondary liability regime, that libraries and archives be exempt from any liability for the actions
of their users. The Delegation stated that it was ready to work hard with all other Member
States to ensure that the Committee made the right decisions. The Delegation stated that if the
Committee were to succeed, it would ensure that many more stories such as the one about
Berta Lutz would come to light for the benefit of future generations and our own.
158. The Delegation of the United States of America stated that it employed both specific and
general exceptions to enable certain types of institutions to carry out their public service
missions. The Delegation stated that in appropriate circumstances, Member States should
recognize limitations on the liability of certain types of monetary damages, applicable to
libraries, archives and other relevant institutions, along with their employees and agents, when
they have acted in good faith, believing or having reasonable grounds to believe that they have
acted in accordance with copyright law. Specifically in the United States, Section 504 C2 of the
Copyright Act set forth remedies for copyright infringement and provided that libraries, archives
and their employees and agents, acting in the scope of their employment, were not liable for
statutory damages for the reproduction of works or phonorecords, if they believed or had
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reasonable grounds for believing that their actions was a fair use under Section 107 of the
Copyright Act. Beyond providing for specific exceptions for libraries and archives in Section
1201 D, although not a limitation on liability, but rather an exception, under certain
circumstances, the Digital Millennium Copyright Act included an exception from the prohibition
on circumventing a technological measure that effectively controlled access to a copyrighted
work for a nonprofit library or archive that gained access to a commercially exploited
copyrighted work solely to make a good faith determination of whether to acquire a copy of the
work or to engage in conduct permitted under the DMCA. The DMCA also contained a
provision requiring courts not to impose civil damages in any case in which a nonprofit library or
archive sustained the burden of proving that it was not aware of, and had no reason to believe
that its acts constituted a violation of Sections 1201 or 1202 of the DMCA. Those entities were
also exempt from any criminal liability for such violations regarding technological measures or
the integrity of copyright management information. The Delegation stated that it reflected those
important provisions of its law in its objectives and principles document, and supported efforts to
ensure that libraries and archives and their employees and agents should not hold liability for
copyright infringement, when they acted in good faith, believing or having reasonable grounds
to believe that they had acted in accordance with copyright law. The Delegation stated that its
objectives and principles document reflected its approach to that and other issues the
Committee had been discussing in that context. The Delegation stated that it found value in
identifying broad objectives and in allowing individual countries to implement them as best
suited to their domestic needs. Exceptions and limitations for libraries and archives helped to
assist individuals in seeking, receiving, and imparting information so that could participate
meaningfully in public life. The Delegation stated that Member States should recognize
limitations on the liability of certain types of damages applicable to libraries and archives and
their employees and agents that acted in good faith, believing or having reasonable grounds to
believe that they have acted in accordance with copyright law. The Delegation stated that it
was interested in hearing how other countries had implemented that principle and how in their
copyright laws, the provisions operate, and what the effects of such provisions had been.
159. The Delegation of Nigeria stated that an international solution limiting the liability of
libraries and archives needed not be open-ended. The Delegation stated that it would be
necessary to moderate it with suitable qualifying conditions to ensure that only cases involving
good faith uses, an exercise of due diligence in carrying out their respective mandates, enjoyed
the benefits of the limitations of liability. Therefore, there was no doubt that a provision of that
nature was germane to operations of libraries and archives as the predominant functions were
in the realm of public interest. The Delegation stated that there had been important views that
had been expressed on the difficulty faced by operators of libraries and archives in navigating
the complicated arena of copyright legislation without honest mistakes that could expose them
to liability for infringement.
160. The Delegation of the European Union and its Member States stated that the issue of
liability of libraries and archives as such was not addressed under the European Copyright
Framework. The Delegation stated that issues in that context may nevertheless be addressed
at the national level of the Member States and by other areas of law, for instance the general
principles of liability law and the respective solutions and approaches to that may differ in the
individual Member States.
161. The Chair suspended that agenda item.
AGENDA ITEM 7: LIMITATIONS AND EXCEPTIONS FOR EDUCATIONAL AND RESEARCH
INSTITUTIONS AND FOR PERSONS WITHOTHER DISABILITIES
162. The Vice-Chair mentioned that the Committee was going back to Agenda Item 7,
limitations and exceptions for educational and research institutions and for persons with other
disabilities, to listen to a presentation on the study for limitations for persons with disabilities.
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The Vice-Chair stated that Professor Reid and his student research assistants would be
presenting the scoping study.
163. Professor Reid stated that he was going to share with the Committee, a very brief
overview of the scope of the study including his plans to study the categories of disabilities, the
categories of copyrighted works, the accessibility, technologies and techniques and copyright
implications and exceptions, limitations and interactions with accessibility law. Professor Reid
mentioned that he would be sending out a questionnaire that he hoped to receive back from the
Member States.
164. A student of Professor Reid stated that for the categories of disabilities that the study
would be looking at, first the study would identify the relevant categories of people with
disabilities, who were likely to face challenges accessing copyrighted works. At the very least,
those categories could include: people who were blind or visually impaired; people who were
deaf or hard-of-hearing; people who were print disabled; people who were deaf/blind or
otherwise blind and hard-of-hearing or deaf and visually impaired; people who had physical and
motor disabilities; and, finally, people who had cognitive and intellectual disabilities.
165. A student of Professor Reid stated that the study would identify the relevant categories of
copyrighted works where accessibility challenges arose. Those categories would at least
include dramatic and nondramatic literary works which included web content and software,
pictorial, graphical and sculptural works, sound recordings and audiovisual content.
166. Professor Reid stated that the study was going to then take those categories of
copyrighted works and those categories of disabilities and would identify existing and likely
future technologies and techniques that were used to provide accessibility to those categories of
disabilities and those categories of copyrighted works. The Professor stated that he had
highlighted a few examples in the handout that the Committee could look at. The examples
listed included: closed captioning, video or audio descriptions for people who were blind or
visually impaired; the interactions with text of screen reader software; cloud sourcing and
automated adaptation techniques; and manual adaptation systems and techniques. With those
techniques and technologies in mind, the Professor stated that the study was going to then
analyze whether self-help or third-party efforts to engage in those techniques and use those
technologies, would implicate exclusive rights in the categories of copyrighted works that were
earlier mentioned. The Professor stated that the study would set aside the implications that
were already addressed by the Marrakesh Treaty and techniques and technologies that did not
conceivably implicate copyright issues. The Professor stated that he was unlikely to be looking
at wheelchair ramps and physical building accessibility, for example. The Professor stated that
where accessibility technologies and techniques did implicate the exclusive rights that were
mentioned, the study would analyze the extent to which existing exceptions and limitations in
the law of the Member States, such as fair use and fair dealing, or more explicit exceptions and
limitations dealing with accessibility, may obviate the need to seek a license to avoid copyright
infringement. The Professor stated that if time and resources permitted, he hoped to analyze
the extent to which those technologies and techniques were required under accessibility laws of
the Member States. For example, the closed captioning and video description regulations of the
Federal Communications Commission in the United States of America, and the extent to which
Member States had harmonized accessibility law with copyright law, including through the use
of exceptions and limitations.
167. A student of Professor Reid stated that to generally assist in the study, it was its intention
to submit to the Member States a short questionnaire regarding the Member States' copyright
law. The questionnaire asked Member States to provide brief qualitative information about the
provisions of their copyright and accessibility laws. A student of Professor Reid’s stated that the
information required would be specific to copyright and disability and included both general and
specific questions.
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168. Professor Reid stated that he anticipated finalizing the questionnaire for circulation in
mid-December and that he was hoping to receive finished responses by mid-February with a
goal of completing the first draft of the study by March 17, 2017, and presenting the final study
after getting feedback from stakeholders at the May 1- 5, 2017 Committee meeting.
169. The Vice-Chair thanked the Professor for the presentation and opened the floor for
questions.
170. The Delegation of Nigeria, speaking on behalf of the Africa Group, thanked Professor
Reid, Professor Ncube and their team for the presentation and for the study to be undertaken.
The Delegation stated that the scope appeared to cover a wide breadth of important areas and
it just wanted to wish the group a speedy exercise and affirmed that the Africa Group would
provide all the information needed.
171. The Delegation of Chile, speaking on behalf of GRULAC, stated that it was looking
forward to receiving the questionnaire and to contributing to that study, which was important for
the advancement of the work of that Committee.
172. The Vice-Chair thanked Professor Reid for the scope of the study and returned to the
outstanding items on the Agenda of the Committee.
AGENDA ITEM 6: LIMITATIONS AND EXCEPTIONS FOR LIBRARIES AND ARCHIVES
(CONT.)
173. The Chair stated that the Committee was ready to continue the discussion on the agenda
item related to limitations and exceptions for libraries and archives, and it would to go to the
next topic on the chart. The Chair opened the floor to item number nine on the chart,
technological measures of protection.
174. The Representative of IFLA stated that it was a basic principle that exceptions and
limitations granted by law should not be overridden by the application of technological protection
measures. The Representative stated that libraries did not object to TPMs in principle, as they
recognized that right holders needed to use those in certain circumstances to protect works.
The Representative stated that seeking the balance that it believed was fundamental to properly
structure copyright laws, it was necessary that libraries be allowed to remove measures, when
necessary to fulfill their public interest mission and to use existing exceptions. The
Representative stated that content protected by TPMs could include the entire range of content
acquired and made available by libraries, not just music, movies, software and games, but also
e-books, scholarly articles and content stored on protected areas of a website, behind a pay
wall, for example. The Representative stated that as libraries were buying a growing share of
content in digital format, TPMs had become a significant factor in library work. While TPMs
could play a role in the fight against piracy, as a compliment to the legal system, they could be
and were also used to prevent libraries and archives from filling their public service missions, by
making it impossible to perform activities permitted by exceptions and limitations. The
Representative stated that an example of that was on preservation. A core library activity was
impeded if the library did not have authority to copy digital works, such as sound recordings or
e-books that often needed to be copied before they deteriorated. Likewise, lending, another
core library activity, could be rendered impossible if TPMs prevented copying a work, to the
owning library's secure server. TPMs had rendered the United Kingdom’s protection for data
mining, ineffective. While researchers had a legal right to perform such analysis on text, they
did not have the legal right to remove the TPMs that prevented them from doing that work. The
Representative stated that libraries may not be able to use assistive technologies, such as
read-aloud functionality, or screen readers, that went to provide access for patrons with
disabilities, when the content they needed was hidden behind TPMs. The Representative
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stated that a recent decision by the United States of America permitted override by libraries and
educators, for purposes of criticism or comment, and for educational or nonprofit uses, were
permitted but only via a protracted and costly regulatory process, that would not have been
required for work not like TPMs. The Representative stated that it saw a way forward through
the work of that Committee. Member States addressed issues proposed by TPMs by including
Article 7 of the Marrakesh Treaty, which provided a useful precedent for language on TPMs to
be included in a treaty for libraries and archives as was indicated that “contracting parties shall
take appropriate measures as necessary to ensure that when they provide adequate legal
protection and effective legal remedies against the circumvention of effective technological
measures, this legal protection does not prevent beneficiary persons from enjoying the
limitations and exceptions provided for in this treaty.” The Representative stated that without a
provision that ensured that libraries, archives and museums could circumvent TPMs in order to
undertake activities recognized as legitimate under copyright exceptions, all other copyright
exemptions risk being rendered effectively useless, at least as far as digital content was
concerned. The Representative stated that there, an override of TPMs in specific cases was an
indispensable tool for realization of numerous other long recognized library exceptions.
175. The Representative of the German Library Association stated that copyright was limited
for purposes of the public good. Technical protection measures could impede national and
research libraries to fulfill their task in the scope of their respective copyright limits. The
Representative stated that copyright protection prohibited relevant uses of works without
consent of the rights holder. As that legal copyright protection was not enough protection for
works on the Internet and other electronic media, legal protection for TPMs was introduced in
the treaty. That protection constituted another layer of protection. That second layer was not
supposed to extend the copyright protection, but to strengthen the copyright protection itself.
Those two protection layers had to be totally congruent. The Representative stated that if they
were not congruent, there was the danger that TPMs prevented actions that were not part of the
copyright protection. The Representative stated that the legal protection of TPMs had to follow
not only the copyright protection but also those limitations. The Representative stated that with
reference to the discussion, at least within the scope of exceptions for libraries and archives,
TPMs should not be protected. In the library sector, TPMs could prevent libraries from
protecting archival copies that went to preserve cultural and scientific heritage for posterity. The
Representative stated TPMs could complicate the electronic legal deposit of e-books and
e-journals and web harvesting. That, the Representative stated, was an international issue as
long as the rights holder, who implemented TPMs, was located in another country than the
libraries and archives which used those materials.
176. The Representative of ICA stated nations that had ratified the WIPO Internet treaties had
amended their national Copyright legislation to prohibit the circumvention of TPMs. That
prohibition on circumvention of TPMs was of great concern to archivists. The Representative
stated that that may be surprising, since a large proportion of archival holdings were not created
for commercial purposes and may not even be protected by TPMs. Nonetheless, as archives
still mailed encrypted materials, they could need to circumvent TPMs in two situations. The first
situation, archives typically acquired materials after they were no longer needed for business
purposes and retained no commercial value. At that stage, the passwords, encryption keys, et
cetera, could have been lost or forgotten, and the archives may be forced to circumvent the
TPMs to examine the material to see if they wanted to acquire it at all or to gain access in order
to describe it and make it available to users. The Representative stated that in the course of
doing so, if there could be personal information or sensitive materials to which access needed
to be restricted. The second situation was one where encrypted works were acquired earlier in
their life cycle, for example, in the course of legal deposit or in order to provide an archival copy
of all works produced by an organization, and the archives needed to access such materials for
purposes that served the public interest, for example, preservation or reproduction for research
and private study. The Representative stated that a recent Canadian study regarding online
piracy revealed that rights holders were far more interested in developing convenient,
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well-priced legal services than strengthening anti-piracy measures. In practice, the American
digital act anticircumvention provision had done little to stop online piracy, instead, such
provisions stifled a wide range of legitimate activities. The Representative stated that it sough
to ensure that each Member State recognized the legitimacy of non-infringing acts performed by
archives and libraries in other countries. Fundamental to that goal was a mandatory provision
that parties provide a general exception to the circumvention prohibition in order to achieve
legitimate uses. The Representative stated that to do otherwise, undermined copyright's
fundamental balance. The Representative stated that legal protection for TPMs did not have to
prevent archives and their users from benefiting from the limitations and exceptions provided for
in whatever instrument emerged from those discussions.
177. The Representative of LCA stated that the United States of America’s implementation of
the WCT and WPPT obligations, concerning TPMs, Section 1201 of the Millennium Copyright
Act, had imposed a heavy burden on libraries and educational institutions. The Representative
stated that instructors at all levels used segments of films and other audiovisual works in
classes to illustrate specific points. Those uses were permitted under fair use, and the
exception for classroom use. The films, often borrowed from collections of libraries, were in
formats such as DVDs which were technologically protected. Thus, instructors needed to
circumvent the technological protection in order to make classroom uses of those segments.
However, the breadth of the Section 1201 prohibited the circumvention. The Representative
stated that that forced libraries and educators to participate in a rulemaking every three years to
obtain a temporary exemption. The rulemaking was a burdensome and led to uncertainty. The
exceptions that had been granted thus far treated different kinds of educational institutions
differently. They were complicated, inconsistent and difficult for libraries and educational
institutions to apply. The Representative stated that a clear, simple, permanent exemption for
libraries and educational institutions to engage in activities permitted under copyright would
better serve public interests without compromising the interests of rightsholders.
178. The Representative of EBLIDA stated that there were three things about technological
protection measures or TPM. The first one was on visually impaired people with the Article 7 of
the Marrakesh Treaty, that contracting parties should not prevent treaty beneficiaries from
enjoying the limitations and exceptions it provided. The Representative stated that however,
original implementation of Article 7 could delay its purpose, for example the approach taken in
the European Union’s recent draft directive to implement the Marrakesh Treaty made no
specific mention to TPMs not being allowed to interfere with the exceptions and limitations
required for implementing the Treaty. The Representative stated that although directives made
were mandatory, three of them merely provided that Member States’ national appeal systems
should apply, in case of interference by TPMs in the context of the directive. The
Representative stated that that did nothing to improve the situation for Europe's visually
impaired people who were prevented by TPMs from accessing content in accessible formats.
The Representative stated that it seemed as if the intention was to contact the publisher and
mount an appeal, wait for it to for several weeks and months as it went through the national
appeal system, and meanwhile, continue to be significantly disadvantaged compared to fully
sighted people. The Representative stated that there was a clear public interest in allowing
legal deposit libraries to circumvent TPMs in order to preserve digital content. It could be
difficult to contact the rights holders, since many were small to tiny and often short lived, and
needles in haystacks. There was no way to circumvent TPMs to preserve legal deposit copies
but that forward thinking approach was not the norm. The Representative stated that without
global action, TPMs would lose their digital control and scientific heritage forever. The
Representative stated that for research, its colleague from IFLA had well mentioned the fact that
TPMs could prevent researchers with text and data mining exception from copying database.
Although publishers needed to protect the integrity of their platforms, researchers needed to be
able to copy entire databases. They often needed to simultaneously perform a search across
different databases to find certain text and data and if they by TPMs, researcher could lose
control over the conduct of their research, which could distort their results. The Representative
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stated that a solution was in the circumvention of TPMs that could be recognized at the
international level.
179. The Representative of SAA stated that to ensure a complete and authentic record,
archives must hold information in all formats, whether analog or digital. When archivists worked
with electronic records, the kind that dominated the current archives, the problem with
technological protection measures arose on an almost daily basis. The Representative stated
that as a university archivist, amongst the most important materials it collected were the
personal archives of scientific research faculty. In the past, those so-called faculty papers
included more than just paper. They included photographs, audiovisuals, research data, et
cetera. The Representative stated that today, however, it was not just a matter of emptying a
few file cabinets and gathering up lab notebooks, instead archivists needed to copy all of their
electronic files from laptops and remote disk drives. The Representative expressed that to
obtain the historical record of their scientific and public work, the first level was just a simple bit
by bit copy, which by itself was not readable. Once the archivists located the software to read
the file, some of the content could be behind passwords or other protection measures or stored
in a computer program that it had to reverse engineer to merely read the data. The
Representative stated that all of that was necessary even before it could assess what was worth
keeping and what lacked long term value. The Representative stated that in a recent example,
about the personal archives of an important biophysicist, in addition to the usual 10 linear
meters of paper files, the archivists located on biophysics’ various workstations, laptop servers
and 18 gigabytes of files with over 18,000 separate files in more than 1400 different filing
formats, all dating back to the early 1980s. The Representative stated that it had a similar
instance in the case of a chemist. Although not all of that content was controlled by
technological protection measures, its data preservation specialist needed to work around the
access controls, merely to allow the archivists to see the files for assessment purposes. If the
archivists were able to determine that the material could be of enduring value, further copying
and decoding was going to be necessary before they could preserve and make it available to
researchers or screen for data privacy issues. The Representative stated that that was just
another example where the archival mission required archivists to do something, which strictly
speaking, copyright law did not allow them to do. The Representative stated that archivists did
not seek to violate the law. Archivists just needed to do what was technologically necessary for
them to complete their work. The Representative stated that appropriate exceptions and
imitations should exist for such purposes.
180. The Representative of eIFL.net stated that the WIPO Copyright Treaty and the
WPPT required contracting parties to provide adequate legal protection and effective legal
measures against the circumvention of effective technological protection measures that
restricted acts, which were not authorized by the authors concerned or permitted by law. The
Representative stated that unfortunately, many countries, even some that were not party to the
WCT, had implemented that requirement to protect circumvention of technological protection
measures to restrict acts that otherwise would be permitted by law; in other words, to restrict
acts that fell within the scope of an exception or limitation. The Representative stated that that
was problematic for libraries, as technological measures could also be applied to works in the
public domain, thus, in effect, extending the term of copyright protection indefinitely. The
Representative stated that TPMs became obsolete when the platforms on which they operated
ceased to exist or the publisher stopped supporting access, rendering digital content,
inaccessible. The average life of a TPM was said to be between three and five years. The
Representative stated that WIPO created that problem through the WCT and the WPPT, and it
was up to WIPO to fix it. The Representative stated that luckily, the Committee had some
useful precedent language in Article 7 of the Marrakesh Treaty. The Representative stated that
without some language, any limitations and exceptions recognized for libraries would
themselves become obsolete, and all of the copyrighted material created in the digital era would
be inaccessible.
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181. The Representative of ARA stated that archivists were extremely worried about the impact
of technical protection measures on their ability to carry out normal archival functions in the
digital age. Such measures were anathema to the way archives work because quite simply,
they denied access in a way which could not be avoided. The Representative stated that there
were no low cost, easy, or legal ways in which archives could work around technical protection
measures. To explain the impact on archives, The Representative stated that it wished to take
an example from a large archive in the United Kingdom. The archive received content on
CD-ROMs from a private individual who was technically literate. In order to protect the content,
that individual added strong copy protection encryption to the CD-ROMs but unfortunately that
person died very suddenly and before the encryption keys had been passed on. The person's
family did not know the encryption keys, either. The CD-ROMs were then completely useless to
the archive as no encryption key meant no access. The Representative explained that some
archives in the United Kingdom had policies that did not allow them to accept into their
collections materials that had a known impediment to managing the items, and they explicitly
included Technical Protection Measures in that category. Before investing in preserving and
making content available, archives needed confidence that that work would not be in vain. The
Representative stated that was an important principle but that an archive was funded for the
public sector, charity or not for profit. The UNESCO process project was a collaborative venture
between UNESCO and a number of international heritage stakeholders. The Representative
expressed that process stood for platform to enhance the sustainability of the information
society transglobally. The project's recent report guidelines for the collection of digital heritage
for long term preservation warned that "legal impediments to preserving or making accessible
digital heritage will weigh heavily on selection decisions. There was a strong risk that the
restrictive legal environment would negatively impact the long term survival of important digital
heritage.” The Representative stated that if it were to avoid that scenario, and the consequent
loss to the direct record of human society, technical protection measures needed to be subject
to limitation for archives.
182. The Representative of KIA stated that TPMs were a legitimate and an important measure
to protect certain works, data and technologies from unauthorized uses. The issues raised by
libraries and archives concerned the legal protection that one gave to the technological
protection. The Representative stated that in some legal systems, the 1996 WIPO Copyright
Treaty, the WCT, had been implemented to provide automatic legal protections for all TPMs,
with only very limited exceptions. Many of the problems explained by the libraries and archives
explained the problems with TPMs and there were many more unintended consequences. The
Representative stated that one reform it supported was to be more restrained in the granting of
legal protection to TPMs, and only to provide such legal protection to TPMs when they are
registered, had paid fees, and met standards, including addressing how legitimate exceptions to
copyright could be exercised and how works could be archived and preserved. The
Representative stated that that would not restrict the uses of TPMs, but only narrow the grounds
under which legal protection was given to a technology protection. The Representative believed
that that reformed approach was consistent with Articles 11 and 12 of the WCT.
183. The Delegation of Nigeria, speaking on behalf of the Africa Group, stated that it
recognized that libraries were buying a growing share of content in digital formats, and that it
had listened to the practitioners who had stated that while technological protection measures
served a role in copyright, including fighting piracy, they could also prevent libraries and
archives and museums from fulfilling the objective of serving the public good. The Delegation
stated that it would like to draw attention to Article 7 of the Marrakesh Treaty which had been
referenced in that Committee. The Delegation stated that that Treaty recognized the role of
TPMs in obstructing access to information and therefore made exceptions to that instrument,
that would enable circumvention of technological protection measures. The Delegation believed
that the same principle should apply to libraries, archives and museums and therefore
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supported the need for them to be able to acquire and apply tools to remove TPMs and use the
digital copyrighted content to fulfill their public service interests.
184. The Delegation of the European Union and its Member States stated that technological
protection measures were an acceptable tool not only for the effective protection of copyright
and related rights, but also for the exercise of those rights in order to develop innovative
services. The Delegation stated that right holders and investors in invasive services relied on
TPMs in order to develop Internet services providing access to copyright protected content,
such as streaming activities, on demand services, online software distribution, thus, contributing
to the increase of the offer of digital content worldwide. The Delegation expressed that the use
of TPMs should not prevent beneficiaries of exceptions and limitations provided for in national
law from benefiting from them. The Delegation stated that the European Union legislation
promoted voluntary measures taken by right holders, including arrangements between right
holders and users. If those voluntary measures were not taken, Member States were obliged to
ensure that right holders made available to the beneficiaries the means of benefiting from them.
The Delegation stated that Article 6, Paragraph 4 of Directive 2001-29, allowed right holders to
take appropriate or voluntary measures, and entitled Member States to intervene so as to
ensure that the beneficiaries of certain exceptions that were deemed to be of public interest
benefitted from them, notwithstanding the absolute prohibition of circumventing TPMs. The
Delegation stated that balanced solutions between the application of TPMs and the benefits of
the establishment of exceptions and limitations could be achieved through national legislation in
the European Union Member States.
185. The Delegation of the United States of America stated that it appreciated hearing more
about the national experiences of WIPO Member States, with respect to TPMs for libraries and
archives, including through Professor Seng's study and from the statement shared by the
Delegation of the European Union on that topic. The Delegation stated that In the United States
of America, there were both specific provisions to provide libraries with the right to circumvent
TPMs, in certain circumstances, to access material in order to determine whether it should be
purchased to be added to the library's collection. There was also a triennial process as it had
been mentioned earlier, through which parties including libraries and archives could exercise
exemption from the prohibitions on circumvention of TPMs, in order to further their work in any
manner in which they sought to obtain one of those exceptions. The Delegation stated that the
United States of America required that a party seeking those exemptions show that they were
users of a copyrighted work, who were or likely to be in the succeeding three-year period,
adversely affected on the prohibition for their ability to make noninfringing uses of the copyright
act of a particular class of copyrighted works. It was envisioned by the United States Congress,
that the DMCA sought to balance the interests of copyright owners and users including the
personal interests of consumers in the digital environment. The Delegation stated that in
addition to providing limitations on the liability of service providers, the DMCA prevented
protection measures to protect copyrighted works, as well as to prevent the trafficking and
anticircumvention devices. The Delegation stated that in its objectives and principles
documents, which it had previously submitted to the Committee, the Delegation had noted
generally that libraries and archives should have the ability to circumvent TPMs, in order to
ensure the responsible and lawful exercise of exemptions and limitations by libraries and
archives, while at the same time stating that limitations and exemptions should appropriately
ensure that libraries and archives could preserve and provide access to information developed
and/or disseminated in the digital form and through network technologies. The Delegation
stated that it saw those mutually enforcing principles and believed that each Member State
should be free to craft its own law to achieve those goals. The Delegation mentioned that the
United States' Copyright office had recently requested public comments on whether the DMCA's
existing categories of permanent exemptions were necessary, relevant and/or sufficient. The
Delegation stated that it had sought feedback on how the permanent exceptions affected the
activities of libraries, archives, museums, educational institutions and others and it had asked
about how the existing permanent exemptions might be amended to better facilitate such
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activities. The Delegation stated that that was a domestic inquiry of the United States of
America that it took very seriously. The Delegation stated that it would be happy to share more
information on that policy process as it advanced.
186. The Delegation of Brazil stated that in many national laws, Member States provided legal
protection and effective legal remedies against the circumvention of technological protection
measures or digital rights management programmes. Those dispositions affected the ability of
libraries and archives to make full use of exceptions and limitations to copyright. In that
scenario, the Delegation stated that it encouraged all members to take appropriate measures to
ensure that legislation against the circumvention of technological protection measures did not
prevent libraries and archives from enjoying limitations and exceptions in the course of their
activities. The Delegation expressed libraries needed to be allowed to fulfill their missions
unhampered by technological or any other hurdles. The Delegation stated that it wished to
quote Isaac Asimov who wrote that “I received the fundamentals of my education in school, but
that was not enough. My real education, the super structure, the details, the true architecture, I
got out of the public library. For an impoverished child whose family could not afford to buy
books, the library was the open door to wonder and achievements, and I can never be
sufficiently grateful that I had the wit to charge through that door and make the most of it.” The
Delegation stated that it could never be sufficiently grateful that Asimov charged through that
library door unimpeded by any physical or technological obstacle.
187. The Delegation of Ecuador stated that it considered that libraries and archives should be
allowed to acquire tools that enabled them to circumvent TPMs through the design of
exceptions and limitations that were well balanced and appropriate for them. That was because
such measures, as several of the NGOs who have spoken had said, could be obstacles to the
carrying out of public policy.
188. The Representative of the Karisma Foundation stated that it associated itself with those
organizations that had spoken before it and that it wanted to share with the Committee, an
experience that recently occurred in Colombia. The Representative stated that the library had a
whole collection of films that had become an obstacle for the institution because they neither
had the tools nor the legal protection, nor the legal means for them to circumvent TPMs. The
Representative stated that the library could not transform those films into a more appropriate
form. Due to the lack of space, and the almost nonexistent demand from the community for that
collection, inter alia, because neither the institutions nor the community had the necessary
technology to see those films, the institution was considering to getting rid of that film collection,
which meant that they might be getting rid of a unique resource for the community.
189. The Representative of AfLIA stated that libraries in Africa were at the forefront of efforts to
adequately place Africa in the global knowledge society. The Representative stated that it was
doing that by working to make the most of digital technologies to provide access to the wealth
knowledge to all Africans. Given the critical role of digital resources, anything that served to
make them less accessible or less user friendly was likely to have a disproportionate effect on
Africa. It was therefore deeply frustrating when, for example, a library user found an article or
resource that he or she needed but could not take a personal copy or share it with a
collaborator. Those were actions that were often perfectly legitimate under exceptions and
limitations, and certainly caused no unreasonable harm to rights holder interest. The
Representative expressed that when there were TPMs in place, it was the software and not the
law that decided what went. Given that it was the law itself that had been undermined, it was
therefore hard to understand why the law itself in many countries made it an offense to remove
those measures without effective provisions to allow libraries to access anticircumvention tools,
making well-conceived exceptions and limitations designed to promote a balanced system, a
dead letter. The Representative stated that there was a need to provide an effective alternative
to piracy, and that would not be achieved by treating those fighting for illegal means of
providing access to information, as pirates themselves.
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190. The Representative of ICOM stated that it supported protections against infringement for
reverse engineering in certain circumstances highlighting the effects on works and collections
particularly to digital works. The Representative stated it was often the case that museums
faced the need to preserve artistic works digitally over time. TPMs could affect the ability to
transpose digital works onto alternative formats as a preservation measure. The
Representative stated while the museum could have the permission of the author, or the artist,
to transpose the work into alternative formats as a means of preservation, the works lawfully
embedded by the author or artist may be protected by a TPM. That caused overwhelming legal
impediments to preservation, thereby threatening the long term sustainability of the work in the
collection.
AGENDA ITEM 8: OTHER MATTERS
Resale Right
191. Professor Ricketson made a presentation of the study on resale rights which would be
found at the webcasting link of WIPO: (Friday, November 18, 2016 Afternoon Session):
http://www.wipo.int/webcasting/en/?event=SCCR/33#demand
192. The Chair stated there was a difference between the different types of creation and that
as opposed to the authors and performers, visual artists found themselves in imbalanced
situations, when faced with other kinds of creators. The right sought to balance situations where
collectors and galleries were illicitly enriched but the resale right was not a guarantee for a
constant income. In terms of the analysis of 14Ter, from the Berne Convention, Professor
Ricketson had mentioned some things that were very important to take into account, in the
analysis of the resale right established specific parameters but the Berne Convention did not
indicate what sales would be affected by the resale right, whether private transactions, duration
of the right or management of that right. Most of these issues had to be addressed in national
legislations and Article 14 was a starting point for any discussions taking place on that subject.
The resale right corrected existing imbalances for visual artists including for indigenous artist
who could be entitled to the right as well.
193. The Delegation of Argentina stated that in some countries the procedure of buying and
selling art works, and the prices of works and exports were not very transparent. As a result,
sellers and buyers did not want to justify their income, or the heritage of a work. The art market
sometimes encouraged under the table operations. The resale right proposal did not really
benefit intermediaries, as the investors would then look for other markets that would not include
those intermediaries. Some young artists were not interested in the resale value of their works,
as their main concern was the first sale and were not interested in any potential advantage to
come in the subsequent years, as their needs were in the present. On the contrary, well known
authors were the ones that benefitted most from the resale right because their works had a
market which was established and that right implied an immediate advantage. The transaction
of the works of well-known artists seemed to take place in a transparent market, because the
buyers needed to have the authenticity of the works proven. The resale right was supported by
well-known artists whereas, the young artists did not. It asked whether the study proposed
other incentives.
194. The Delegation of France reminded of the reasons in why in 1920, France introduced that
right into its national legislation. The main reason of the resale right was the desire to protect
and the right had a social dimension, which was extremely important. In 1920, the French
government and Parliament had observed that when artists died, their families and successors
would live in poverty, even though the artists’ work was still of large value and was being sold
on the market at a high price. France put in place that system in 1920 to protect artists from
poverty but that was not the only element of protection that motivated the creation of the resale
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right. Another important element was on the use of French resale rights which should not be
confused with the English translation. There was a difference between droit de suite and resale
right. Droit de suite allowed the artist to follow up their work throughout the life span of that
work, and was not just an economic element to protect them from poverty, but also included an
element of control for the artist. That meant that once the artwork left the workshop, the artist
could follow up on the work and that the element of following up was moral and extremely
important and could be used by indigenous communities as proven by the implementation of the
right in Australia in 2009.
195. The Delegation of Turkey speaking on behalf of Group B, thanked Professor Ricketson
the presentation.
196. The Delegation of Nigeria, speaking on behalf of the Africa Group, thanked Professor
Ricketson for his informative presentation and stated that it had taken note of the fact that
Professor Ricketson had made the case of why authors should continue to benefit from
subsequent exploitation of their work, and from his presentation, highlighted the impact that that
had on indigenous artists which certainly applied in the African context. The Africa Group
welcomed continued discussions on resale rights in the SCCR.
197. The Delegation of Senegal stated that the situation which had given rise to the resale right
in France was very topical in Africa and for developing countries in general. Copyright aimed to
establish a permanent legal link, that was not just economic, but a legal link between the artist
and his work. The resale right allowed the artist to do so. It expressed its support and
agreement with the study and thanked all the delegates of all the Member States for their open
spirit, which had made that presentation possible. It welcomed the fact that new countries like
the Delegation of Kenya aimed to introduce the resale right into their national legislation and in
so doing would join more than 50 percent of all Member States who had already adopted the
resale right. It questioned Professor Ricketson about the arguments on the negative impact that
the resale right had on art.
198. The Delegation of Latvia, speaking on behalf of CEBS thanked the Delegations of the
Republic of Congo and Senegal for putting together the proposal on the resale right. The
Delegation thanked Professor Ricketson for his presentation and had listened to the
presentation, on the various aspects of the resale right, with great interest. It was a good basis
for further discussions and the elements in the presentation would generate interesting, fruitful
discussions among Member States.
199. Professor Ricketson responded to that set of questions, and his response would be found
at the webcasting link of WIPO: (Friday, November 18, 2016 Morning Session)
http://www.wipo.int/webcasting/en/?event=SCCR/33#demand
200. The Delegation of Malawi thanked the Delegations of Senegal and the Republic of Congo
for putting forward the resale right proposal. It aligned itself with the position of the Africa
Group, in support of the resale right provision and stated that it was very enlightening as Malawi
was thinking of introducing the resale right. As digital online creations were excluded from the
resale royalty right, it wanted to know whether the resale royalty right applied to works that were
resold online.
201. The Delegation of the European Union and Member States thanked Professor Ricketson
for his presentation. The Delegation stated that as it had pointed out in the past, it attached
great importance to the resale right, which had been recognized in the European Union's legal
framework for more than a decade, through dedicated legislation applicable in all 28 Member
States. That topic was of high importance for creators from all countries and regions of the
world, and it would be happy to share its experiences in that regard
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202. The Delegation of Côte d'Ivoire stated that it was following the conversation on resale
rights with great interest. Professor Ricketson’s descriptions and diagnosis of what had
happened in Australia were strikingly similar to what happened in Côte d'Ivoire. The resale right
in Côte d'Ivoire was carried out and managed through the collective management system, and
so far, everything had been working well. The Delegation asked which regulatory channels had
to be followed to address imbalances injustice against visual artists.
203. The Delegation of China thanked Professor Ricketson for his presentation and study
which had helped the Committee understand more about the resale right. China was
considering the introduction of the resale right and it was amending the third amendment of its
copyright law, but it hadn’t finished its amendment. Therefore, the presentation by Professor
Ricketson, in the framework of the SCCR, was something that the Delegation paid attention to
and it had helped a lot.
204. Professor Ricketson responded to that set of questions, and his response would be found
at the webcasting link of WIPO: (Friday, November 18, 2016 Morning Session)
http://www.wipo.int/webcasting/en/?event=SCCR/33#demand
205. The Representative of the Canadian Copyright Institute (CCI) thanked the Delegations of
the Republic of Congo and Senegal for bringing that excellent motion to the floor. Visual artists
in Canada had been striving for the artist resale right for many years. Artists were poor in
Canada and among them, visual artists were the poorest. Even some of its most respected and
awarded artists were living well below the poverty line. Visual artists on average made about
18,000 a year, and more than half of the visual artists in Canada were earning less than 8,000 a
year, which was well below the poverty line. It did not think that enough attention had been paid
to retired artists as in Canada, retired artists had been extremely economically vulnerable, and
even though the value of their work had increased so much over time, on the resale market,
they themselves had been incapable of creating work and had been struggling with extreme
poverty. The beauty of the artist resale right was that it would bring income to senior artists
whose work had often been most valuable when resold throughout their lives. Rich bodies of
art had contributed to them by artist members of more than 600 first nations and it was valuable
that the artists could see a little profit of their own work. In Canada middle men were
immediately reselling indigenous work for triple the cost they had paid for it. The resale right
could immediately protect against that through the law and could empower indigenous artists.
206. The Representative of the European Visual Artists (EVA) stated that it was a collective
management society whose members were nonprofit organizations and whose duty was to
ensure that sure that the artists’ copyright was safeguarded and that they were always
remunerated, as that was there right. While they did not receive very much, artists contributed
to the value and richness of many countries. A study of the global visual art sector had shown
that 391 billion U.S. dollars had been generated from visual works and 6.7 million jobs created
while artists themselves did not get very much from those figures. A study from 2016 had
indicated that in the art market, the annual income from global sales in 2015 was 63.8 billion
U.S. dollars and the United States of America was number one with 43 percent of the market,
but did not have a resale right. The United Kingdom, the country in second place, with 21
percent of that market, had had the resale right for 10 years, and that China was in third place
with 19 percent of the market. The figured indicated that the introduction of the resale right had
no effect on the very efficient and resilient art market in the United Kingdom. It had been
involved with the introduction of the harmonization of the resale right in the European Union and
led its introduction in the United Kingdom. London was the biggest art market in Europe, and
was dominated by the biggest auction houses. It made no sense to only have national
solutions. The harmonization in Europe had been concluded and had been fully applied since
2012, with regular meetings at the national and European Union level, of art market
professionals. A study in Europe had shown that there was no proof there had been a move
due to the resale right and since marking its tenth anniversary of the resale right, numbers in the
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United Kingdom had indicated that over 81 percent of the artists used earnings from the resale
right to pay for living expenses and only 30 percent were estates receiving money. From the 50
best earning authors from resale right in Australia, 22 were indigenous people. As the art world
and markets were getting larger it was important for artists to benefit from the resale of their
works.
207. The Representative of the International Confederation of Societies of Authors and
Composers (CISAC) thanked Professor Ricketson for his enlightening presentation and stated
that the resale right was very important for visual artists as it offered a modest but important
source of revenue for them. The right also promoted transparency in the art market. Some
artists had described the right as a way to help them know where their children are around the
world. Most importantly, it was also about fairness and it was important to remember that. It
was a right based on fairness and justified on the basis of the unique nature and characteristics
of visual arts which were very different from other forms of art and creativity. When visual
artwork increased in value, it was because of two things: there was only one original, genuine
copy and the reputation of the artist had increased. This was different from the situation of
music or films as when a song was popular, it saw more commercial success, sold more copies,
whether on CDs, downloads, or streams. The song generated more royalties to those who
were involved in the creation because of its popularity and copies. That was not the case when
it came to visual art, and there were no more copies. The second reason for the increase in
value was because of the reputation of the artist. The Committee had heard that the first law on
the visual art of the droit de suite was introduced in France in 1920, against the backdrop of
artists starving and the families living in very poor conditions. Today that right had been
recognized in the European Union and in 80 other countries around the world. International law
on visual art was an area which had not yet been harmonized. The right existed in the Berne
Convention but it was not mandatory, and as a result, some Member States had recognized it
and some others had not. The goal was to ensure that the descendants of the artists were
sharing in the proceeds of the sale of the work in auction houses and galleries, not only
because that was fair, but also because it was unfair that only the seller in the auction house
benefitted from the increase in value. Critics of the resale rights and the auction houses had
argued that the resale right would kill the art market, but it did not. Therefore it was time to
make that right a universal right and a mandatory, fundamental element of international law.
The art market today was global and that the problems visual artists faced, were global and
required a global solution.
208. The Delegation of Cameroon thanked the Delegations of Senegal and the Republic of
Congo its proposal and thanked Professor Ricketson and stated that it had a national museum
in Cameroon, where there were a large number of indigenous artists who had voluntarily given
their works of art to that museum as a direct sale. In such cases how could the original work be
followed when it was exhibited in a museum.
209. The Delegation of Chile, speaking on behalf of GRULAC, thanked Professor Ricketson for
his presentation and his availability to share that study. The Delegation thanked the
Delegations of Senegal and Republic of Congo for the proposal already submitted in past
sessions. It reiterated its concerns on the inclusion of that point on the Committee’s agenda
because it needed to have sufficient time devoted to the discussions on broadcasting and
exceptions and limitations, which were of great importance to GRULAC, as well as other topics,
which were found in other business, for example, the proposed analysis of copyright in the
digital environment.
210. Professor Ricketson responded to that set of questions, and his response would be found
at the webcasting link of WIPO: (Friday, November 18, 2016 Morning Session)
http://www.wipo.int/webcasting/en/?event=SCCR/33#demand
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211. The Chair thanked Professor Ricketson for his presentation and closed the presentation
and that item of the Agenda.
AGENDA ITEM 6: LIMITATIONS AND EXCEPTIONS FOR LIBRARIES AND ARCHIVES
(CONT.)
212. The Chair stated that regarding the analysis of limitations and exceptions for libraries and
archives, the floor was open on topic 10, contracts.
213. The Representative of the ICA stated that copyright was typically understood as a balance
between, on the one hand, promoting the public interest in the creation and dissemination of
informative intellectually enriching works for public consumptions, and on the other hand,
obtaining a just reward for creators by providing financial incentives for authorship. Archives
played an essential role in serving the public interest by preserving and making such works
available to the public. The Representative of stated that in the digital world, the international
flow of information between archives and libraries and from libraries and archives to their users,
was especially dependent on internationally recognized exceptions and limitations to copyright.
Archives in particular relied heavily on such exceptions because the majority of their holdings
were not created for commercial purposes, thus for most material in their collections, there were
no representative bodies to provide licensing, and there was little prospect of effective new
licensing models. Exceptions and limitations that were fundamental to the work of archives
could be over ridden by contractual agreements. For example, some archives were using
private sector vendors to provide cloud storage for their digital holdings. If the vender was in
another jurisdiction, the cloud storage provider may fail to comply with the copyright and privacy
laws of the repositories jurisdiction. The mere presence of boiler plate or standard clauses
establishing the choice of law that would govern an agreement would undermine the principle of
territoriality that undergirded international copyright law. Contractual overrides completely
nullified the purpose of the exceptions and tipped the copyright balance toward the benefits of
right holders. The Representative expressed that without effectively agreed upon limitations
and exceptions, the copyright system risked being a private system with little inventive to serve
the public interest. Thus, whatever instrument resulted from that process must include a
provision that permitted an archive or library to invalidate any contractual provision that
prevented or restricted it from doing any act consistent with the limitations and exceptions
provided by such an instrument.
214. The Representative of IFLA stated that it recognized and respects the right to contract in
most, if not all Member States' legal traditions. The Representative expressed that it recognized
that contractual terms and conditions could clarify gray areas that did not exist in copyright law.
However, those values and benefits were often outweighed by the restrictive terms and
conditions found in many licenses that libraries encountered when obtaining content for patrons.
It was an important principle that licenses should not override statutory limitations and
exceptions. The Representative stated that much of what was accomplished that week and
would be of little confidence if the way forward did not guarantee that the rights secured for
libraries and patrons could not be over ridden by a contract. The essence of contracts,
licensing and libraries, represented a dangerous reordering, a move from the public sphere in
transparent processes established through open forums such as the Committee and within
Member States legislative processes. The Representative stated that even in negotiated
license scenarios, that ordering often presented libraries and library patrons with an information
landscape severely lacking in uniformity. That was due to the differing authorized use
preventions contained in the array of licenses that may govern any one library's collections. The
Representative stated that content licenses often contained a restriction on further distribution,
prohibiting the library from engaging in what would otherwise be lawful, interlibrary loan
exchanges with other libraries, for the benefit of patrons. That clause may also prevent a
library’s own patron for sharing the content with others in a non commercial context, overriding
exhaustion or first sale rights. The Representative stated that in an analysis published in 2013,
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of 224 electronic journal licenses in California libraries from 2000 to 2009, purchase certificate
found that prohibitions on electronic library loan and other restrictions were common. The
British library conducted a review of 100 licenses for electronic resources in 2008 and found
that over 90 percent of the licenses contained terms that were more restrictive than the existing
exceptions and limitations law. The Representative stated that the private ordering could also
result in a library bound by laws of another Member States, due to the choice of law and choice
of form provisions. The Swiss library consortium estimated that 60 percent of the licenses
referred to U.S. law, to other jurisdictions such as Germany, 25 percent to the U.K., and just 15
percent referred to Swiss law. The Representative stated that it recommended nip instrument
regarding limitations and exceptions for libraries mirroring the approaches taken by countries
such as Belgium, Ireland, Montenegro, Portugal, the U.K. and being considered by South Africa,
whereby a proviso is included stating any contractual clause purporting to restrict limitations and
exceptions secured for libraries in the copyright law be deemed void and unenforceable.
215. The Representative of eIFL.net stated that in 2010, a review found robust evidence that
licenses for educational content in libraries routinely conflicted with statutory copyright
exceptions. That study also found that among publicly funded institutions, that libraries were
certainly the most affected by usage restrictions in copyright contracting. For example, while
national copyright law may permit the lending of a copy or the creation of a preservation copy,
the license could prohibit or restrict that activity, in essence, the public law of copyright was
being hollowed out by the private law of contract. The Representative stated that the review
found that even in the sectors such as libraries, that they should be in a position to negotiate.
Evidence was that statutory limitations and exceptions were becoming irrelevant and that was
because the bargaining strength of the parties was unequal. Publishers dictated the terms and
libraries had to accept because they needed to obtain access for the specialized content for
their users. The Representative stated the issue was also international because the licenses
were usually governed by the law of phone jurisdiction, irrespective of where the library was
located. The licenses were usually written in English regardless of national language and in
many jurisdictions it was unclear whether those restrictions on otherwise lawful activity were in
fact enforceable. The Representative stated that it recognized that licenses were part of the
digital ecosystem, for example, a license to a digital work could reasonably define the number of
committed simultaneous users, at the same time it should not be possible to prohibit the
exercise of copyright exceptions enacted by lawmakers. Where that happened it was the
taxpayer who was funding the libraries that was the loser. Legislators were increasingly
recognizing the problem and were coming up with solutions. The Representative stated in
2014, when the United Kingdom adopted an exception for text and data mining, it prohibited the
enforcement of contractual provisions intended to override the exception and at the same time it
also protected the library exceptions. Unfortunately, of course, it failed to prevent the override
of technological protection measures. The Representative stated that the proposed European
treaty on copyright and digital single market, which was released in September 2016, protected
that from being overridden by contract. Indeed, there was precedent for that as both the 1991
software treaty and the 1996 database directive declared that the contractual provisions
contrary to the directive, irrespective exceptions, were null and void. The Representative stated
libraries needed the same protection as others and that exceptions granted by legislature
should not unilaterally be overturned by copyright owners.
216. The Representative of EBLIDA stated that the contract override issue was about
protecting a balanced copyright framework by safeguarding limitations and exceptions provided
by law, on the principles that the prerogative of legislators to undermine the extent and
operation of copyright limitations and exceptions should be respected. The Representative
stated that various European countries, the United Kingdom, Ireland, Portugal, and others
legislated to any contract terms, not the whole contract, that per ports to restrict or remove the
exceptions and limitations. Singapore was considering similar measures as it updated its
copyright laws. The European Union was making a start at the same level to protect the same
in the undermining exceptions by being undermined by the license term. The Representative
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stated that when the United Kingdom legislated for that in 2014, it was evident from comments
made that the principal of protecting the vision of the copyright framework was a major driver for
protecting limitations and exceptions from tradition by license terms. The Representative stated
that until then, as evidenced by a 2008 study, more than 90 percent of licenses with the
information resources offered to libraries had prohibited the carrying out of acts permitted by the
U.K. law. Licenses for products often had terms that restricted or prohibited lawful uses such as
preservation copying, copying in accessible formats for visually impaired people, copying for
other purposes and in supply of requests to readers from other libraries, lending, copying for
education for research or for private study, text and undermining. The Representative stated
that the Internet knew no borders as the resources were accessible from anywhere in the world.
The international digital licenses, that were offered to libraries everywhere with terms that often
negated the limitations and exception established in the international laws of the subscribing
library. Typically licenses offered internationally were governed by laws of the chosen
legislation of the publisher, as a library managing several hundreds of licenses, they had
uncertainty of laws that did not correspond with their national law. The Representative stated
that the trumping of limitations and exceptions was a mockery to copyright legislation. The
community effect was that licenses, often international, in nature were government controlled.
217. The Representative of LCA stated that contractual restrictions on limitations and
exceptions were perhaps the greatest threat to the legitimacy and effectiveness of the copyright
system as they had the potential to replace the public law of copyright formed at the national
and international level, with the private law of contract imposed by right holders on consumers.
The Representative stated that that trend started over 50 years ago, as software experts began
to distribute products under license. As more products were distributed digitally, those licenses
became ubiquitous and now almost all digital content was obtained subject to a license,
including digital content licensed by libraries. The Representative stated that the potential for
conflict between contracts and copyright exceptions was enormous. That was an issue that
was considered in a comprehensive manner in the United States of America. However, the
Representative stated that there was greater awareness of that problem in Europe. The
Representative expressed that that was an issue that WIPO and the Member States needed to
address if copyright were to continue to reflect public objectives.
218. The Representative of the German Library Association stated that library statistics in
Germany indicated that online resources purchases represented 60 percent of the total budget
for research libraries. In technical universities, the budget share for online resources purchases
was even higher: 83 percent at the technical University of Munich and 67 percent at the
technical University of Berlin. The Representative stated that in non-specialized research
libraries, the expenses for online resources accounted for 73 million Euros. Different from
printed materials, online materials were not purchased by simple faith contracts, but by
hundreds of several different long licensed page agreements. The Representative stated that
those license agreements can and do override statutory exceptions. The Representative stated
that as had been shared in the Committee by some delegations, there was a problem with
implemented mandatory exceptions being over ridden by licenses. The Representative stated
that exceptions which were not mandatory simply had no effect, and that, national mandatory
exceptions may not even have any effect when the library and right holders were located in
different countries. The agreement may be ruled by the jurisdiction of the right holders’
countries, or the court may refuse to recognize the effect of other jurisdictions’ mandatory
exceptions. The situation where the right holder and the purchasing library were established in
different countries was now the norm. The Representative stated that libraries purchasing
online resources from foreign right holders should be sure that the exceptions of their own
countries legislation were effective and recognized by foreign courts. That could only be
achieved by an international agreement.
219. The Representative of AfLIA stated that Africa was a continent with so much potential but
has been held back because of the lack of infrastructure and connectivity, leaving people
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isolated from the world. The Representative stated that there were many possibilities created
by digital technologies. For example, the use of the mobile telephone by farmers and
fishermen, to regulate agricultural inputs and monitor market prices, has been very successful.
The Representative expressed that digital tools opened the opportunity to plug Africa in the
global knowledge society and that technology could help develop the literacy, knowledge, skills,
and creativity of Africans. The Representative stated that libraries and users accessed digital
licenses, which became a problem comes when those licenses included terms which limited the
effect of exceptions and limitations to copyright. The Representative stated that as libraries in
Africa and around the world were making ever more use of licenses to digital materials, rather
than physical ones, the risk imposed by the lack of resolution was even greater. The
Representative stated that it was hard to understand why activities allowed by policymakers,
were done through contractual terms. The Representative expressed that the African
publishing industry was still small and that it relied heavily on buying materials from elsewhere.
When a library subscribed to an online journal, which was published outside of the continent
and was governed by its home laws, that was particularly a problem as the librarians were
offered to access the licensed materials that were governed by foreign laws. The
Representative stated that the solution had to be a provision that made unenforceable any
contract terms against exceptions and limitations. The Representative stated that unless a
contract override provision was universal, librarians and users would continue to face confusion
and uncertainty. Freedom of contract was an important principle, but Africa’s librarians were
often ill placed to negotiate terms, and faced a take it or leave it situation. The Representative
stated that access to knowledge should not be so easily sacrificed. To help libraries, archives
and museums meet public interests, and to ensure the effectiveness of policymaker decisions, it
was essential that WIPO agreed on the non-flexibility of contract terms that overrode exceptions
and limitations
220. The Representative of the International Association for the Protection of Intellectual
Property (AIPPI) stated that the exceptions and limitations for library and archives should in
principle not be capable of being overridden by contract, in view of the public interest underlying
them. The Representative stated that they may be overridden by contract only and to the extent
that the fundamental rights protected by the exceptions or limitations, such as the right of
access to information, the right to education, the freedom of quotation, were not unduly
restricted.
221. The Representative of STM stated that it was important to have an evidence based
approach in the discussion. The Representative stated that STM had done a qualitative survey
of licensing terms, covering 11,200 scientific, professional, technical journals. The
Representative stated that only 7 percent of contracts applicable to those journals referred to
exceptions and there was no overriding whatsoever. The Representative stated that 99.9
percent of those licenses expressly permitted interlibrary loan. The Representative stated that
interlibrary loan was distinctive from the commercial and systematic supply that would induce
some libraries to substitute such interlibrary loans, with the purchase their own particular
content through individual contractual agreements. The Representative stated that as it could
not go through the entire survey, what it wanted to highlight was that claims of abuses, for which
most national laws would have redress, were where imbalances existed. The Representative
stated that the digital environment relied on contracts and that it should not come as a surprise
that those contracts governed the use and access of electronic goods. There was simply no
other way, and even where people may think that there was no contract, there was a contract,
even if it was not spelled out. The Representative stated that to say let's do away with contracts
would reduce the availability of works. The Representative referred to a research initiative,
Research4Life, done as a private-public partnership between four U.N. organizations, 220
publishers, four or five universities that was entirely based on contract. The Representative
stated that that initiative brought research access, of more than 120 emerging or developing
countries, to the level of access of the University of Chicago in the United States of America, at
no cost to the beneficiaries of the program. The Representative stated that that program would
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simply not exist but for licensing and contracts. The Representative stated that it objected to the
mischaracterization of contract as a thing that undermined access. The new business model of
open access relied entirely on licensing and contract. The Representative stated that the
answer was not to limit the ability to enter into licenses. As for the necessity to determine the
applicable law to a contractual document, the Representative stated that it was as such so that
the publisher would not have to formulate 108 different licenses for the same content and
reduce the efficiency. The Representative stated that most of the contracts were silent on
exceptions and only 7 percent mention exceptions at all.
222. The Representative of KEI stated that TPN and contracts provided private roles with
consequences that impacted the public in important ways. The Representative agreed with the
comment made by AIPPI. The Representative stated that the relationship to contracts and
copyright was important, not only with regards to exceptions, but also in terms of concerns
about unfair commercial arrangements between artists, authors, publishers, a topic discussed in
the GRULAC paper on the digital economy. The Representative stated that it may be useful for
WIPO to convene a technical meeting on the topic focusing on impact of the contract on
exceptions and also address the unfair contracts involving autonomous temperatures and
performers that some right holder groups and governments highlighted as concerning.
223. The Representative of the Civil Society Coalition (CSC) stated that contracts, meant to
serve users and organizations, are not an authority to move from exceptions and limitations of
national legislation on copyright. The Representative stated that in the European Union, certain
Member States had provisions protecting exceptions and limitations to copyright. The
Representative expressed that regardless of the ultimate aim of discussion on exceptions and
limitations in that Committee, it was essential to see to it that in the private law of contracts,
national and international provisions were respected and complied with.
224. The Delegation of Ecuador stated that there was a principle in law that contract laws
which contravene legislation, should be considered to be in existence or unwritten. The
Delegation stated that as had been discussed in that Committee, sometimes libraries and
archives were compelled to comply with contracts that countered national legislation,
particularly, in terms of access to digital content. The Delegation stated that with the
establishment of an international instrument for limitations and exceptions, which safeguarded
the aforementioned principle, the libraries had to make use of all limitations and exceptions,
which are provided for in the national legislation.
225. The Delegation of Argentina stated that it wished to highlight a problem which was
similarly linked to the open access platforms, and which was connected to the authors of
scientific replications, when the author was an employee of a university, or when the
government had paid the author a subsidy to carry out and publish the work. The Delegation
stated that the professor or researcher was in many cases subject to labor legislation, and the
work was published in a repository of open access and that could not be done in another
matter. The Delegation stated that the researchers had to see to it that the work was published
in magazines of prestige, with international scope and that the researcher had to yield the rights
to publication which were going to be distributed by the publication. The Delegation stated that
the same research work was subject to two kinds of legislation: the regulations of employee,
professor or researcher, and then the law and legislation. The Delegation stated that
sometimes the government of some countries acquired the licenses of those periodic
publications, to provide access to universities and libraries. In some other countries those
periodic publications could be accessible with general licenses, which could be many millions of
dollars and which usually include conditions as to use of the material. The Delegation stated
that those contradictions had a solution, which was provisional and limited, and which would
determine that the contract for yielding up rights or giving uprights, subject to publishing, could
be above the labor legislation. The Delegation stated that in practice, there had not been cases
for legal demands for researchers and professors who had violated the contracts. The
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Delegation stated that in terms of those contracts, some provision should be made in
international legislation.
226. The Delegation of Nigeria, speaking on behalf of the Africa Group, believed that it was
unjust to allow contracts to negate the goals articulated in exceptions and limitations for the
public interest. The Delegation stated that it supported the call by libraries and archives for an
obligation to respect exceptions and limitations and the services that the organizations provide
for the public good.
227. The Delegation of Chile stated that the contractor freedom was an important principle
which was present in Member State legal regulations, however that could not go against any
rights and obligations established by law, to prevent the exercise of limitations and exceptions
to copyright and related rights. The Delegation stated that those were tools that ensured that
there was balance in the intellectual property system. Therefore, the non-contractual provision
should ban restricted use and could consequently consider null the effect of contract. The
Delegation stated that was a legal obligation and could only be there when there was an
exception improving the legal minimum guaranteed therein.
228. The Delegation of the European Union and its Member States stated that when it came to
exceptions that were specific to libraries, archives, research and were related to contracts, the
copyright framework was traditionally largely silent on that matter. The Delegation stated that
there were certain exceptions provided for by the computer programs directive, also known as
the software and database directive, with a provision regarding the possibility of contractual
override. Otherwise, the matter was left to the Member States who could elect to address the
issue in their legal systems or not. The Delegation stated that the European Commission had
recently adopted legislative proposals in the so called second copyright package of the ongoing
reform of the European Union copyright, and those proposals included exceptions addressing
preservation, text and data mining. The Delegation highlighted that regarding the proposal for
text and data mining exception there was a need to expressly address the issue of contractual
override since that exception would often apply in a licensed based environment. The
Delegation those proposals were currently being discussed by the European Parliament and the
Council.
229. The Delegation of the United States of America stated that it was concerned by the
suggestion that mutually agreed upon contracts between private parties would be nullified by
the operation of law. The Delegation stated that in its country it recognized that contractual
provisions could work to benefit both sides and that they did not always narrow the ability to
exercise exceptions but could expand the activities that were permitted beyond those governed
in exceptions or could provide greater clarity as to their legality. The Delegation stated that as it
had stated in its objectives and principles document, right holders had a critical role in ensuring
sustainable access to copyrighted works in developed countries. The Delegation expressed
that rapidly changing technologies required flexible solutions and that Member States should
encourage collaborative and innovative solutions among all stakeholders. The Delegation
stated that another tenant of its objectives and principle document was the enablement of
libraries and archives to carry out public service roles and missions. The Delegation recognized
that overly strong contractual constraints may be the intention of that goal and encouraged
Member States to encourage multistakeholder dialogues domestically, to elevate the concerns.
230. The Representative of Creative Commons Corporation stated that it wanted to quickly
respond to the comments, in relation to Open Access Licensing. The Representative stated
that it was using Open Access Licensing as an example to show the need and benefit of
licenses and contract. The Representative thought that the issue was being misconstrued, and
that the issue was not that there was not a place for licenses and contracts and management of
copyright, but the issue was that some contracts had terms that effectively contrasted the
benefit of the exceptions for the user. The Representative stated that there was a frequently
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asked question on the Creative Commons website asking if Creative Commons Licenses affect
copyright such as fair dealing and fair use. The Representative stated that the answer on the
website was no, as all of the licenses included language that accounted for exceptions and
limitations. The Representative expressed that nothing in that license was intended to reduce,
limit, and restrict any rights arising from fair use, first sale or other limitations on the exclusive
rights of the copyright owner under copyright law or other applicable laws. The Representative
stated that the laws of all jurisdictions allowed some use of copyright material without
permission of the creator and allow quotation, reporting and parity in some jurisdictions. Fair
use and dealing were two exceptions to copyright that may be relevant to use of the Common
Creative license work depending on the jurisdiction.
231. The Chair opened the floor on topic 11, exceptions and limitations for libraries and
archives related to the right to the translation of works.
232. The Representative of ICA stated that archival institutions did not routinely translate their
holdings into another language, although one could find examples where that has occurred.
The Representative stated that the Newton project at the University of Sussex translated
selected religious writings by Sir Isaac Newton from Latin into English and that in the United
States of America they had translated eighteenth and nineteenth century journals from German
into English. The Representative stated that those did not infringe copyright because their
copyright had expired. However, there were occasions when it was necessary for archivists to
translate in copyright records, or a portion thereof, that were in another language, either to
present such documents as an exhibit, to prepare a guide in the official languages of the
archival institution or to establish whether there was content that could be restricted in some
way. The Representative stated that missionaries in Nicaragua had operated educational
institutions and hospitals, and had kept detailed journals, written in the Moskito language,
documenting their work. The Representative stated that some of those records from the 1930s
to the 1980s were in the Moravian archives in the United States of America, but no one there
read them as they contained personal information about students, hospital patients and
participants in the political upheavals of the 60s and 70s. The Representative stated that while
it recognized that the church would own the copyright to those particular records, there may be
other similar holdings whereby the church was not the right holder that needed translation. The
Representative stated that making their holdings available for research was fundamental to the
archival mission, therefore it was desirable that any instrument resulting from the process
include an exception that permitted archives to translate works in order to determine the content
of the records, both to identify and safeguard sensitive information and to prepare descriptions
of their holdings, that made them accessible for non-commercial purposes throughout the world.
233. The Representative of eIFL.net stated that librarians were trained to help people find the
information they needed. Thanks to translation, not only could people everywhere access the
world's knowledge, but their own expressions and ideas could reach the widest possible
audience. The Representative stated that the translation rights offered by Article 8 of the Berne
Convention provided the rule, but when it was only one or two individuals who needed a work,
or when the right holders chose not to exercise their rights, or when it was not even clear who
the right holder was, there was a situation of market failure. There was a need for libraries to
perform translations in order to obtain data vital to making works discoverable in the first place.
The Representative stated that faced with that risk of market failure, exceptions offered a
solution. In situations where there was no commercially available translation of a book, it
should be permissible to make the translation for a user for personal research purposes. The
Representative stated that in Japanese and Egyptian law, translation fell under the reproduction
exception, whereas in Chile, there was a separate exception. The Representative stated that
the translation exception, therefore, was part of the reproduction exception or standalone
provision, and would help not only avoid market failure but also an unnecessary barrier to
access to knowledge.
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234. The Representative of SAA stated that when it first heard that translation was a
suggestion, its first reaction was that archivists don't translate as they were neutral. The
Representative stated that upon opening its morning email, it was reminded that of course
archivists could avoid doing translations, as they managed records of unfamiliar languages,
which translation would help archivists accomplish some core functions of their work such as
appraisal, description and user services. The Representative stated that there three reasons as
to why translation was a necessary a part of the archive toolkit. First, there was a long tradition
of archives being centers for creation and of authoritative additions of historical documents,
often involving translation into the local language. Second, translation in part was essential for
administrative purposes such as the preparation of collection inventories, review of documents
to determine the merit retention, attesting the authenticity of a document and providing guidance
to research users. Third, translation may be necessary in the response to the current
technologically driven researchers, seeking material for protection of human rights, cultural
preservation and digital humanity scholarship. The Representative stated that that wakeup
email from a staff member alerted it on the need for a translation. The Representative stated
that sometimes translation was just needed for inventory control and that most modern archives
include materials in many major languages as well as indigenous, disappeared languages. The
Representative stated that exceptions for translations would also need to incorporate support
for the use of new technology, that enabled archivists work with digital humanity scholars and
students in an era where high quality automated translation was on the horizon, and not
necessarily Google translate. The Representative stated that establishing exceptions that did
not support library archives’ and museums’ use of such automated translation technology,
would merely guarantee immediate obsolescence.
235. The Delegation of Ecuador stated that knowledge of another language could not be a
barrier that impeded access to the knowledge of information and education. The Delegation
stated that the Committee must contemplate the possibility of having libraries and archives
translate works that were not available in the official language of each and every country, in
conformity with the records of the Stockholm Conference. The Delegation stated that the
Committee must apply the same rules and exceptions to translation.
236. The Delegation of Chile stated that the universal ability to have access and to contribute
to information, ideas, knowledge was an essential element in an inclusive society. The
Delegation stated that the current situation indicated that the world constantly had to face
asymmetries of information on a global level. Very often that attributable to differences, but in
the end, those led to barriers for everything else. The Delegation stated that with access to
knowledge to overcome those, it was essential to have effective public policies. In that context,
the Delegation believed that it must be possible for libraries and archives to translate works
which were extremely important for the world to make progress, without a requirement to
remunerate the owner nor obtain authorization, without being subject to certain conditions
including that they have been acquired legally, that the translation should be done after having
allowed for a certain amount of time to pass and that translation should be carried out for
reasons of research or a study.
237. The Delegation of Brazil stated that as it had mentioned in its previous statement, one of
the obstacles facing those seeking to further their education in Brazil was the fact that important
and up to date reference materials were not always available in the Portuguese language. Still,
that was a universal problem, as any English speaking academic researcher would confirm that
many works of foreign scholarship were not translated into the world's most widespread
language. The Delegation believed that libraries and archives should be allowed, for the
purpose of teaching, scholarship or research, to translate in any format works lawfully acquired
or accessed when the works were not available in the national language, provided that the
authors name was included. The Delegation stated that it was persuaded that that was in full
compliance with the three-step test and that it was an important measure to encourage access
to knowledge.
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238. The Delegation of Nigeria, speaking on behalf of the Africa Group, stated that as a region
with diverse languages that did not or may not form the most common languages, using the
international scientific and cultural discourse and production, it believed that language should
not be a barrier to access to knowledge. The Delegation stated that there was not enough
demand or incentive for right holders to translate the works into those local languages and that
excluded users from the quantity and cultural and scientific research. The Delegation stated
that it was in that regard that the Africa Group strongly supported abandoning international
instruments that led to provisions for exceptions for libraries and archives to be able to translate
the copyright works for the use of personal, and not research purposes.
239. The Representative of KEI stated that in addition to scholarship and research that needed
to use translation, there was an increase in business and commercial relationships that were
cross border. The Representative stated for people engaged in those business relationships, it
was important that they know what they were signing, who they were dealing with, by having
basic information in another language. The Representative stated that as a result of
globalization, those issues of translation were becoming more important.
240. The Representative of LCA stated that one of the virtues of fair dealing or fair use or the
flexible exception approach was that it could provide the latitude for translation in the
appropriate circumstance. The Representative stated that the various examples of translations
in the archival context fell under a fair use type of exception. The Representative stated that
that showed the virtues of a flexible, open ended approach to exceptions and limitations.
241. The Delegation of the United States of America stated that as a threshold matter, the
United States of America noted that the right of translation was an important right reserved to
authors under Article 8 of the Berne Convention. The Delegation stated that U.S. Copyright Act,
Section 106.2 was its derivative works whereby right holders could enjoy that right. The
Delegation stated that the United States of America did not support any new international
limitation on that right for libraries and archives, but that it would be interested to learn more
about the actual operation of such provisions under national law. The Delegation noted that
Professor Crews, in the updated version of his study on exceptions and limitations for libraries
identified several countries with an explicit exception for translations, made by libraries and for
personal use. The Delegation stated that many of those followed the elements laid out in the
Berne Convention Appendix of 1971. The Delegation stated that Professor Seng in his study
had noted that on exceptions for educational purposes, he found 52 provisions from 29 Member
States that addressed the compulsory licenses for translations and reproductions combined.
The Delegation stated that the Berne Appendix had provisions on that, which conditioned a
compulsory license for translation being used only for teaching, scholarship, research purposes
and for use in connection with systematic instruction activities, although the scope of those
terms was not defined in the appendix. The Delegation stated that it would be interested in
hearing more from countries that incorporated those types of exceptions, whether based on the
of Berne Appendix or not, to understand the exceptions that were working for right holders,
users, other stakeholders, including libraries and archives.
242. The Delegation of the European Union and its Member States stated that in terms of the
translation right, it would like to clarify that even though some European Member States
recognized the translation right as part of their national legislation, the European Union
legislative framework did not explicitly include a translation right harmonized at European Union
level. The Delegation stated that no explicit exception or limitation was listed in the exceptions
and limitations included in the European Union directives. The Delegation stated that such an
exception allowing translation of works into another language could not at the European Union
level be derived from exceptions applicable to different rights, like the reproduction right, the
right to communication by the public or the public lending right. The Delegation stated that it
would like to recall that the appendix to the Berne Convention included the possibility for
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developing countries to enact compulsory licenses for the translation and reproduction of books
for the purposes of teaching, scholarship, research. The Delegation stated that it too would like
to hear about the national experiences of those WIPO Member States that had made use of that
possibility.
243. The Chair stated that it would like to share a summary of that discussion. After
completing the discussion on the 11 topics in the Chair’s chart, the Chair wished show a
preliminary outcome of that discussion. The Chair stated that since it was preliminary, the
Committee should consider it a rough draft as they had done so with previous deliveries. The
Chair stated that it had used the chart as a means of guiding the discussion. The Chair stated
that that was limitations and exceptions for libraries and archives and that the chapeau in the
document chapeau was one that the Committee had seen before. The Chair stated that that
chart provided a substance for the various resources of the Committee and would allow the
Committee to have an evidence-based discussion, respecting views, with the understanding
that the goal was not to guide the discussion to a desired outcome, but to lead to a better
understanding of the topics and relevant discussions and intended outcomes. The Chair stated
that the Committee had heard the discussions on the need of establishing exceptions and
limitations at the national level, and in fostering that, there were different views that were
expressed. The Chair stated that the ultimate goal at the end of the discussion was the full
consideration of the exceptions and limitations. The Chair stated that it had updated that chart
with the view to enact exceptions and limitations for each one of those related topics. The Chair
stated that the delegations could exchange national experiences, listen to best practices and
listen to legislation models. The Chair expressed that at the end those were additional tools to
achieve exceptions and limitations at the national level by different countries. The Chair stated
that the second principle it had used was a structure for each topic. The Chair stated that that
structure was mainly a principle to guide each topic and had concerns that should be taken into
account by Member States when enacting exceptions and limitations on a national level for
those specific topics, and after the concerns were expressed, suggested approaches to tackle
those concerns. The Chair stated that that was the structure that the Committee would see,
principles, concerns, suggested approach. The Chair stated that on the issue of preservation
for example, the principle was that in order to ensure that libraries and archives could carry out
their public service responsibility of preservation, including in digital form of the cumulative
knowledge and heritage of mentions, limitations and exceptions for the making of copies of
works may be allowed so as to preserve and replace works under certain circumstances. The
Chair stated that the concerns related to that principle were that there was legal uncertainty
regarding whether existing limitations and exceptions for preservation purposes were applicable
to digital context. That included the question if the digital convention format issue should be
considered as a reproduction act. The Chair stated that there was legal certainty that libraries
and archives could not achieve missions out of fear of conducting illegal acts such as
unauthorized uses for replacement copies. The Chair stated that additional words should be
introduced to provide unauthorized uses of such copies. The suggested approach for that
concern was to ensure that existing and proposed limitations would enable libraries and
archives to make digitals, for the purpose of carrying out their mission. That limitation and
exception should also cover digital works, and attention should be given to limit the purpose of
recollection and replacement, avoiding misuse of the limitations and exceptions. The Chair
stated that it read it out loud because that was the structure that the Committee would follow for
each one of the 11 topics. On the right of reproduction, the Chair stated that it was considered
to be for safe wording copies and that it partially overlapped with the first topic. The Chair
stated that it moved from mentioning preservation, and it was reckoned that the topic could be
read, a reproduction for research and similar purposes. The Chair stated that the principle was
that reasonable accommodations and pensions should allow libraries and archives to reproduce
for research and other purposes, without fear of engaging in illegal activities. The main concern
was that it was important to secure, for research and similar purposes, the rights, and to ensure
that they would not negatively affect the balance between right holder interests and the public
interests. In consequence, the suggested approach was that that limitation on exceptions
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should not affect the normal exploitation of the works, nor prejudice the legitimate interest of
right holders. The Chair stated that illegal deficit was considered an interesting issue, and that
most of the delegations recognized that it was not exactly an exception of intellectual property
right. The Chair suggested that that topic be removed suggestion from the list. On the fourth
topic it, national library lending, the Chair stated that there were boundaries and that the
principle was that the recent limitations and exceptions should allow materials to be lent directly
or through interlibrary, through print, format, digital means in the same jurisdiction. The Chair
stated that the concerns were that the distribution to work through the library lending in digital
format especially, should not enable unauthorized users in the world. There was a question of
whether that was a benefit from the existing limitations and exceptions for library lending. The
licensing was key in working efficiently, and it should not be undermined. The Chair stated that
the limitations and exceptions should not affect the regime of the right of distribution. The
suggested approach was that the limitations and exceptions should allow lending to avoid
unauthorized users and the confinement of access, to determine the receiving of libraries
among all of the solutions that have been suggested. The applicability of the limitations and
exceptions on national library lending had to be subsidiary to the existence of effective licensing
schemes. The Chair stated that it should be clarified that the existing social regimes should not
be affected by the specific limitations and exceptions. The Chair stated that the fifth topic,
related to cross border issues, was suggested to be removed from the topic of the list taking in
account that that was a question to be addressed under topic six. The Chair stated that the
sixth topic was on international library lending and importation and in that regard, the principle
was that it could be related to that cross border uses was that libraries and archives should be
able to import, export, exchange copies of works across borders for research and similar
purposes, in order to achieve the public service mission through cooperation especially in
developing and least developed countries. The concerns were that that limitation should not
affect legitimate markets of works and the suggested approach to tackle that concerns was that
in order not to affect the legitimate established markets, the limitations and exceptions for cross
border usage should not affect the normal exploitation of the work and should not prejudice the
legitimate interest of right holders. The Chair stated that the seventh topic included retracted
and withdrawn work and works out of commerce. The discussion was focused on works and
the chart, on that topic, was focused on orphan works. The principle was that it should be
assured for the benefit of libraries and archives to achieve their mission and certain conditions
in order not to derail users. The Chair stated that the concern was that the limitations should
not affect legitimate moral and economic rights of other right holders. The suggested approach
was that the provisions to adequately compensate right holders either directly or through
collective management once they're identified should be included. That limitation and exception
should not entail the liability of activities undertaken in good faith under the reasonable diligence
search prior to the use of works. The Chair stated that such limitations or exceptions should
also respect moral rights. The Chair stated that the eighth topic was limitations. The principle
was that librarians should be able to fulfill public mission and responsibility without facing legal
liability. The concern was that the activities should be subject to sanctions where they were
undertaken with reasonable grounds to know that they constituted infringement activities. The
Chair stated that the suggested approach was to apply limitations to liability, the good faith
activities carried out by libraries and archives. When carried out knowingly or with reasonable
grounds, to know that they constituted infringement activities. On topic nine, technological
measures of protection, the principle was that limitations and exceptions granted should now be
emptied of their effect through the application. The concerns were that the circumvention of law
by the limitations and exceptions to TPMs should be limited to the legitimate uses. The Chair
stated that the suggested approach was that appropriate measures should be taken to ensure
when they provided adequate legal protection and effective legal remedies against the
circumvention of the technological measures that did not prevent libraries and archives from
limitations and exceptions. On contracts, a topic that had been discussed, even if it was not a
limitation or exception by the horizontal issue, the impact of the contractual arrangements was
set in limitations and exceptions for libraries and archives required further discussion. On topic
number eleven, right to translate works, it was discussed that translating works in special
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circumstances was a need that had been described. The Chair stated that further discussion
was required. Regarding those two last topics, they were trying to reflect the ongoing
discussion and while all the topics tried to set a summary, not all of the different sets of
provisions, but trying to extract some principles that has been used in the discussion. The Chair
stated that that was a good faith activity that was not intended to set an undesired outcome. It
was just a matter to see the results of the rich exchange and views regarding the eleven topics.
The Chair stated that the chart was a tool that required further thoughtful consideration.
244. The Delegation of Nigeria, on behalf of the Africa Group, thanked the Chair and stated
that the Africa Group would consider the document and would refer its decision.
245. The Chair announced that the Committee would go back to and discuss the topic of
exceptions and limitations for educational purposes.
246. The Delegation of the European Union and its Member States stated that with respect to
the Chair’s summary, the Delegation stated that it needed some time to take stock of what had
been shared, coordinate and would revert back on that text later on.
AGENDA ITEM 7: LIMITATIONS AND EXCEPTIONS FOR EDUCATIONAL AND RESEARCH
INSTITUTIONS AND FOR PERSONS WITH OTHER DISABILITIES (CONT.)
247. The Delegation of Turkey stated that in terms of limitations and exceptions for educational
activities and research institutions, the chart, reflective of Professor Seng’s study, was missing
the topic of licensing and as such wanted that topic to be added to the chart.
248. The Delegation of the European Union and its Member States stated that it supported the
statement made by the Delegation of Turkey. The Delegation invited Professor Seng to extend
his study to cover the four additional items which were on the chart and which no work had
been done on them. The Delegation stated that extending that study help complete the
Committee understand those issues and treat them on an equal footing as the others.
249. The Delegation of Nigeria, speaking on behalf of the Africa Group, stated that the Chair's
chart should also include adapted translations and adaptations.
250. The Delegation of Chile reiterated on its previous statement that in the area of limitations
for research and educational institutions, there should be a study that would look at the impact
in other areas. The Delegation stated that there was a more concrete proposal that would be
circulated to the regional coordinators.
251. The Representative of Communia thanked the Chair for its chart, which it hoped would be
useful in directing the discussion. The Representative stated that it wished to propose a topic to
be added, translations and other adaptations. The Representative expressed that copyright
policy needed to empower activities of teaching and learning. An argument was often made
against the introduction of an internationally harmonized educational exception, based on
national educational systems. To counter that argument, the Delegation expressed that the
right to education, as guaranteed by Article 26 of the Universal Declaration of Human Rights,
was universal. The Representative stated that national education systems may vary to a great
extent with differences in curriculum, funding and certification but that did not provide any
justification for variance from that universal right, therefore also the right to use copyrighted
works in an educational context. The Representative stated that it agreed that attention ought
to be paid to local conditions, but if that universal right was central. The Representative stated
that the discussion on local specificity concerned educational publishing ecosystems. The
Representative stated that the law needed to support the right to education across the world,
including cross border education such as distance learning. The Representative stated that the
Committee should ensure that copyright supported and did not hinder modern education. The
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study indicated a great range of educational exceptions around the world, whereby in some
Member States they were strong and modern, with the sky not having fallen in those countries.
The Representative stated that education thrived without prejudice against authors, librarians
and archivists as well as right holders. The Representative stated that in other Member States,
educational exceptions were weak or non-existent with educators facing a complicated
patchwork of rights, with little legal certainty, and teachers and learners having to navigate the
copyright maze on their own while fearing that they were breaking the law. The Representative
stated that that was not acceptable, and that the Committee needed to set international
mandatory minimum standards for limitations and exceptions. The Delegation stated that it had
preliminary remarks on what an educational exception should at the minimum secure. It should
provide the standard set of rights to educators and learners and should keep pace with
technological advances while remaining neutral to allow for the circumvention of TPMs for
educational purposes. The Representative stated that it should secure the overriding of
exceptions through contracts and should secure the right for non-commercial educational use
without remuneration around the world.
252. The Representative of Creative Commons Corporation stated that it welcomed WIPO's
new Open Access Policy, making the publications freely available and widely accessible. The
Representative thanked the Chair for the extremely helpful chart and stated that it would
consider it with great interest. The Representative believed that in the digital era, universal
access to education was possible. The Representative stated that it was working extensively
with governments, education institutions, companies and individuals, to share free licenses and
legal tools to promote access to knowledge and information. The Representative stated that it
underpinned many resources from academic papers through quality education videos and
higher educational courses. The Representative expressed that governments, charitable and
other organizations, were requiring research to be openly licensed, in return for funding.
Governments and organizations were proactively using the Creative Commons platform in order
to remove copyright restrictions that would otherwise hamper research. The Representative
stated that all of that material was easily accessible by teachers and others, using it to study,
research and build upon. The Representative stated that it was proud of the opportunities
provided by the Creative Common resources and understood that licensing alone was not and
never could be, the full solution. Creative Common licenses only applied to a fraction of
necessary education resources and works whose creators made a conscience decision to
openly license their work. The Representative stated that open licensing, or otherwise, could
not replace the essential work of educational exceptions and limitations. The Representative
thanked Professor Seng on his study and stated that there was work to be done before all of the
189 Member States. The Representative stated that there was a divergence on how to protect
educational rights as many countries’ exceptions had not kept pace with the technological
advances. The Representative thanked the Delegation of Argentina for its interesting proposal
focusing on the two crucial factors of uniformity and coordination that provided that minimum
standards that could be used in cross border situations were a necessity in the digital globalized
world. The Representative stated that it supported that proposal on the mandatory minimum
standards for copyright limitations and exceptions.
AGENDA ITEM 8: OTHER MATTERS (CONT.)
Copyright Related to the Digital Environment
253. The Chair opened the floor for the second item on Agenda Item 8, which was related to
document submitted by GRULAC.
254. The Delegation of Chile, speaking on behalf of GRULAC, stated that GRULAC hoped to
continue the discussion on document SCCR/34/4, on the digital environment. The Delegation
stated that the Committee needed to assess issues related to the digital environment, as had
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been put forward by different sectors, including artists, performers, and government
representatives. Bearing in mind those concerns, the aim of the proposal was to contribute to
common solutions which would benefit society, and the rights holders, in light of the challenges
which had arisen from new ways of using intellectual property, which were protected by
copyright in the digital environment. The Delegation stated that was why it had put forward the
proposal, to debate the new challenges posed by the use of works and performances, which
were protected in the digital environment within the SCCR. The Delegation stated that it was
please that there had been an exchange of opinions between Member States on its proposal.
The Delegation appreciated the support from both Member States and from different observers,
and now wished to assess that topic in greater detail and with greater focus. The Delegation
proposed that to the Secretariat that a study be carried out on progress that had been made in
the last ten years, regarding national legislations on copyright within the digital environment.
255. The Representative of the Ibero-Latin-American Federation of Performers (FILAIE) stated
that it would like to see a change whereby there was fair use of the Internet by artists and
creators. The Representative thanked GRULAC for putting forward that proposal on the
worrying context of the digital environment and fair remuneration when the performers' works
were used in the digital environment. The Representative stated that the current situation in the
digital environment was lamentable and that it would lead to a catastrophe in the near future, if
adequate measures were not adopted. The Representative stated that it appreciated the
proposal by GRULAC because it made an analysis of the situation and puts forward a solution
regarding copyright and fair remuneration for the use of performances and works that were
under copyright. The Representative stated in the last 20 years, the work that had been put
forward by artists in the digital environment, had been completely ineffective for them, as it was
only digital operators and phonographic operators that had benefit from that. The Committee
needed to change that configuration. The Representative stated that that was an urgent topic
and needed to be debated within WIPO independently, and that needed to be featured on the
following SCCR's agenda. The Representative stated that the Committee needed to consider
how serious the situation was as the digital economy was having a moral effect on artists, which
affected millions of people across the world. That was the time to mobilize, to ensure that fair
conditions were offered to musicians, considering the contributions that they made to people’s
lives. The Representative stated that as the WIPO Director General, Francis Gurry, had shared
on world Intellectual property day, the Committee needed to mobilize for music, to ensure that
the digital economy did not lose sight of the contributions of musicians and performers because
they were the most important part of the productive chain. The Representative stated that it
would like to ensure that the entire creative community had the collaboration, the cooperation of
members and the government, as well as NGOs, so that that problem could urgently be
resolved. Artists were not asking for special protection or privilege from governments; what
they were asking for was understanding, so that they could continue to work and fulfill their
dreams. The Representative stated that artists accepted the risks and uncertainties that
existed, and all they wanted was to ensure that when their work was used, and benefits were
earned, they wanted to ensure that there was fair remuneration for their use, and that was not
what was currently taking place. The Representative stated that people needed to be protected
and needed to feel they were protected by their representatives, with regard to intellectual
property. The Representative stated that the Committee needed to ensure that it could fulfill the
main mission of intellectual property which was the guarantee of the economic viability of artists
and the creative industries. The Representative stated that in the last year, the artistic
community across the world was unsatisfied and that there had been different manifestations of
that through the creation of local and international communities which had been working on
campaigns for fair Internet and for fair remuneration in the digital environment. There were
general frustrations, because the earnings made from the digital environment did not get to the
artists. There was general demand across the world to have fair remuneration on digital
platforms that would guarantee that there would be future consumption of music. The
Representative stated that there was data that artists did not have access to and which did not
match the small quantities which were received by artists. The Representative stated that that
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lack of clarity benefitted the intermediaries, but that it damaged the artists who were the ones
who worked on the music. When artists called into question digital platforms and the ways in
which the profits were distributed, they did not exact figures and the benefits and figures were
unclear. The Representative stated that that was what needed to be debated in WIPO, so that
artists and creators could be involved. The Representative stated that as a creative industry, it
needed to work with governments to ensure that artists had the right protection, and that their
rights were protected, and that they were receiving fair earnings. The Representative stated
that if the thousands of artists across the world only depended on what they earned from the
digital environment, they would not be able to survive. The Representative stated that in some
parts of Latin America, only 20 percent of artists received the right remuneration. Artists had
experienced a drastic reduction in the earnings from the digital economy.
256. The Delegation of Brazil aligned itself to the statement delivered by the Delegation of
Chile, on behalf of GRULAC. On the rapid changes in the content industry, the Delegation
stated that 20 years ago, Member States had celebrated the signing of the WIPO Copyright
Treaty. The Delegation stated that according to specialized media, in 1996, the revenue of the
music industry worldwide was 60 billion U.S. dollars. In Brazil, a music group bewildered by the
fast changes in technology and its use in creative industries recorded a song stating that it was
computers that made art and artists that made money. The Delegation stated that in 2006, ten
years later, the scenario in the content market was quite different. According to IFPI, the music
industry revenue that year was 31.8 million U.S. dollars, a decline of almost 50 percent in ten
years. The Delegation stated that in that same year, Google acquired YouTube and today,
according to IFPI, within the global music market, digital had become the primary revenue
stream for recorded music, overtaking physical format sales. In 2015, digital revenues
accounted for 45 percent of total revenues compared to 39 percent for physical sales. Digital
revenues rose 10.2 percent, leading to the industry's first significant growth year on year in
almost 20 years. The Delegation stated that even with that very positive outlook for the future of
creative industries, in the digital environment, artists such as interpreters of music and other
visual industries, complained of the lack of retainment for the use of their works in the digital
environment. The Delegation stated that the previous year GRULAC had presented a
document analyzing copyrights related to the digital environment and proposing discussion on
the treaty areas, the analysis and discussion of legal frameworks to protect works in digital
services and analysis and discussion of the role of companies and corporations that made use
of protected works in the digital environment, and the verification business transparency and
proportion of copyrights and related rights payments to the multiple rights holders. The
Delegation stated that consensus on management of copyright in the digital environment, in
order to deal with the problems associated to that matter, from the low payment of authors and
artists, to the limitations and exceptions to copyrights in the digital environment, was needed.
The Delegation stated that the proposal from GRULAC raised important questions to allow
copyright offices to better deal with transparency, exceptions, limitations and territoriality of
copyrights, in digital environment. The Delegation supported the proposal from GRULAC to
mandate the WIPO Secretariat to start work on a study to analyze legal frameworks
implemented in the last ten years, to protect works in digital services. The Delegation stated
that that study would be instrumental in having a more informed discussion in the following
session of the Committee.
257. The Delegation of Nigeria, speaking on behalf of the Africa Group, thanked GRULAC for
its proposal which raised important discussions concerning copyright management in the digital
environment. The Delegation stated that it would engage constructively in the Committee's
discussion on how to continue its deliberations on the GRULAC proposal, along with the other
agenda items that the SCCR was tasked with.
258. The Delegation of the European Union and its Member States stated that it would share a
joint statement. The Delegation thanked the Delegations of Senegal and the Republic of Congo
for their proposal to include the resale right in the agenda which was first raised in that
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Committee at it Twenty-Seventh session and tabled at the Thirty-First session. The Delegation
stated that the European Union attached great importance to the resale right, which had been
recognized in the European Union legal framework for more than a decade, through dedicated
legislation applicable in all its 28 Member States. The Delegation stated that it welcomed the
presentation by Professor Ricketson on the resale right and thought that topic was of high
importance for creators from all countries and regions of the world. The Delegation believed
that priority should be given to that issue if the SCCR agenda was expanded to cover additional
items in the future. The Delegation gave its support for discussion on the resale right at the
international level, especially during SCCR. The Delegation looked forward to sharing its
experience and information on the implementation of the European Union resale right directive
and the merits of that right. The Delegation stated that it was of the view that the issue of
copyright in the digital environment merited attention and discussion, so that copyright could be
more efficiently protected, as it played a role in the digital era. However, it was important to
note that that was a potentially very wide topic, not necessarily clearly defined, and not only
related to copyright. The Delegation stated that before the Committee could take it up, it should
clearly determine the concrete subject of conversation.
259. The Delegation of Turkey, speaking on behalf of Group B, stated that it wished to share a
statement on both the resale right and the GRULAC proposal. The Delegation thanked
Professor Ricketson for his presentation on the resale right. The Delegation stated that that
presentation followed the proposal by the Delegation of Senegal and the Republic of Congo,
related to that topic introduced in the SCCR plenary at the Twenty-Seventh session. The
Delegation stated that it was aware of the opportunities and the challenges generated by the
digital age. However, before considering discussions on that topic, the Member States needed
to first reach an understanding on the objectives. The Delegation stated that any possible
future discussions should be to share experiences through an open and inclusive dialogue.
260. The Delegation of India stated that it had studied the proposal put forward by GRULAC
and it was of the view that that proposal was optimally timed, and that it addressed a number of
issues that were cross cutting, as far as the work of SCCR was concerned in all its current
agenda items. The Delegation stated that it fully supported the proposal by GRULAC and urged
other Member States to seriously consider that proposal so that the work in the SCCR becomes
contemporary.
261. The Delegation of Latvia, speaking on behalf of CEBS, thanked GRULAC for putting
forward the proposal for analysis of copyright in the digital environment. The Delegation took
note of the deliberation of the interesting ideas behind that proposal during the previous SCCR
session. The Delegation stated that as the agenda of that Committee was already quite full and
the proposal put forward by GRULAC covered a wide range of issues, the Delegation was
considering the proposal and would pronounce itself at the later stage.
262. The Chair asked if there were any comments on the request to do a study of the
legislation related to the digital environment that covered the last ten years.
263. The Delegation of Chile stated that having heard many of the comments which it had also
heard in previous sessions, that was the opportune moment for the Secretariat to carry out the
study on the elements which would impact the digital environment, and which had been
incorporated in national legislations within the last ten years. The Delegation stated that that
was the proposal that it was putting forward as a group. The Delegation clarified that that was
not something that it was proposing to be a standing item on the current agenda. The
Delegation stated that it was just proposing a study. The Delegation invited the delegations to
take that proposal into consideration, based on concrete and objective data.
264. The Delegation of Senegal stated that it welcomed the proposal submitted by GRULAC.
The Delegation stated that the arguments that had been given were very relevant, and it
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believed that it would be useful to have a study carried out. That would allow the Committee to
assess the impact of the WCT and the WPPT, the aims of which were to update copyright and
related rights in relation to technological developments. The Delegation stated that it was true
that the issue of time was pressing, and that was why, and as such the Delegation proposed a
special meeting to work in that format, so that Member States could discuss all the questions
that had been raised regarding the issue of resale of rights. The Delegation reiterated that it
supported the proposal submitted by GRULAC and that it should be included on the table. The
Delegation asked for the support of all Member States in the proposal of a meeting to discuss
those issues, particularly concerning resale rights, in more detail.
265. The Delegation of Nigeria welcomed the proposal by GRULAC and stated that it looked
forward to discussing it in the succeeding sessions of the Committee. The Delegation stated
that it was very interested in the proposal on the study to be carried out, as it believed that apart
from highlighting how the digital environment had impacted copyright administration, it would
also help countries who were currently reforming their legislation. That would allow those
Member States to see a clear direction on how to make provisions that would, in the digital
environment, help the copyright systems in their national laws.
266. The Delegation of the Republic of Korea thanked Professor Ricketson for his presentation
on the resale right. The Delegation stated that the presentation was very informative and
interesting, and that it looked forward to the constructive discussion on the resale right. The
Delegation stated that the introduction of that new topic may affect the time allotted for the
discussion on the broadcasting treaty. Throughout the past years, the Committee had witnessed
many challenges and differences among Member States on various topics, particularly on the
broadcasting treaty, which was a top priority for the majority of Member States of WIPO. The
Delegation hoped the Committee would take that concern into account in the address of that
issue.
267. The Delegation of France supported the proposal by the Delegation of Senegal to discuss
resale rights in more detail. The Delegation stated that it was interested in continuing that
discussion. The Delegation stated that that proposal was good as the Committee would not
have to decide straightaway whether to introduce that agenda item. On the study on the digital
environment, the Delegation wanted to know if the discussion was on studying how legislation
had developed over the last ten years. The Delegation wanted to know the precise focus of the
study and if the study was going to see how national legislation had responded to the issues of
sharing values between platforms. The Delegation stated that it was worried that the discussion
on the study was a bit too vast and so complex and difficult to comprehend.
268. The Delegation of Chile thanked the Delegations of Senegal and Nigeria for supporting
the proposal and for the consultation that was proposed by the Delegation of France. The
Delegation stated that that was not a proposal to look at a specific point, but it was rather to
have a clear panorama to understand how the legislation of different countries on copyright had
responded to digital matters. The Delegation stated that it would like to identify what elements
had been included in national legislations, to respond to the challenges of the digital
environment. The Delegation believed that it was a broad topic, but that the Secretariat could
first give a panorama, so as not to have a 1,000 page document. The proposal was to have a
broad idea of what was going on in different national legislations. The Delegation stated that
what it wanted to have was a factual background to be able to continue that debate.
269. The Delegation of the European Union and its Member States stated that in terms of the
proposal by the Delegation of Senegal to host a meeting on resale rights, which would take
place under the aegis of WIPO, the Delegation supported that proposal.
270. The Delegation of Japan stated that in terms of the topic of resale rights, it supported the
statement made by the Delegation of the Republic of Korea. The Delegation stated that it
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considered that it was important to respect the current balance of discussion on the current
agenda items. Regarding the topic of resale rights, the Delegation believed that any information
regarding that right or its mechanisms would be useful for the Committee, in order to objectively
analyze the current situation. In that regard, the Delegation thanked Professor Seng for his
informative presentation. The Delegation was of the opinion that that Committee, at that
moment, should focus on the agenda related to the broadcasting treaty.
271. The Delegation of the United Kingdom stated that on the topic of resale rights, it
supported the proposal made by the Delegations of Senegal and the Republic of Congo.
272. The Delegation of Tunisia stated that the resale right was very important and as such
supported the proposal made by the Delegation of Senegal concerning the organization of a
conference or a meeting on resale rights, in order to further discussion of that issue. The
Delegation supported the statement made by the Delegation of Nigeria, on behalf of the Africa
Group concerning the proposal by GRULAC.
273. The Delegation of Italy stated that it supported the request made by the Delegation of
Senegal to organize a meeting on resale rights.
274. The Delegation of Côte d'Ivoire supported the statement made by the Delegation of
Nigeria on resale rights. The Delegation supported the organization of a conference or a
workshop on that topic.
275. The Delegation of Ethiopia stated that it aligned itself with the statement delivered by the
Delegation of Nigeria, on behalf of the Africa Group. The Delegation supported the proposal of
resale rights by the Delegations of Senegal and the Republic of Congo.
276. The Delegation of Germany supported the proposal made by the Delegation of Senegal
on convening a meeting with artists.
277. The Delegation of Brazil stated that on the elements that were raised regarding the
proposal from GRULAC, the study would be a good way to build that exchange of experiences.
The Delegation stated that as that document was presented a year ago, it believed that most
delegates had had the time to go through it
278. The Delegation of the United States of America stated that it had been listening carefully
to the interventions with respect to the GRULAC proposal for a study on the progress that had
been made in the last ten years regarding national level laws responding to the digital
environment. The Delegation stated that it agreed with the Delegation of France that the scope
was very broad. The Delegation stated that it could imagine a treatise of some 2,000 pages,
which would make Professor Seng a little jealous. The Delegation stated that it had an
amendment that the Secretariat come up with a scoping study, to somehow flesh out that
proposal in a way that would be manageable for a researcher. The Delegation stated that the
Committee could consider such a scoping study at the following session of that Committee.
279. The Delegation of the European Union and its Member States stated that on the point
made by the Delegation of the United States of America, the Delegation stated that there was
much merit in considering how any future study would be useful to that Committee. The
Delegation stated the area was vast and indeed the 2,000 pages that were mentioned may just
be the introductory part of any study on the digital impact on copyright. The Delegation
suggested that the Committee give that matter further thought.
280. The Representative of the International Federation of Musicians (FIM) stated that the
WPPT, adopted in 1997, aimed to update the rights of performers, in order to take into account
the emergence of the Internet. The Representative stated that 20 years later one could see that
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nobody had anticipated the fact that streaming would become the main mode of distribution for
recorded music, replacing traditional broadcasting means. The Representative stated artists
were currently in a weak position, as the revenue received from streaming was more often than
not just symbolic. The Representative stated that there was an increasing frustration which
every day becoming more and more unbearable. The general revenue across the Internet in
telecommunications meant that that topic was now becoming more and more relevant and the
Beijing Treaty, adopted in 2012, had a more modern approach. Article 12 Paragraph 3 of that
Treaty mentions fair remuneration measures, which were part of the tools that were available for
the fair and balanced implementation of exclusive rights of artists and performers. The
Representative stated that it encouraged Member States, as part of the proposal of GRULAC,
to discuss and consider the difficulties faced by creators, artists and performers, and to look for
the most appropriate solutions to provide remedies to those issues. The Representative
recommended studying that issue in detail, and commended the document by GRULAC for
looking at the new digital environment. The Representative stated that the study that had just
been proposed was something that it supported. The Representative stated that that study
would help the Committee better comprehend the scope of the treaty of WIPO.
281. The Representative of the International Federation of Actors (FIA) stated that it shared the
concerns raised in document SCCR/31/4 on the value gap in the digital economy. The
Representative stated that that was often mentioned those days, with reference to the need for
online platforms to share a more equitable part of the wealth, generated by the on demand
distribution of protected content. However, when talking about the value gap, the focus was still
mostly on corporate entities licensing the online use of such content, and much less on
performers and other creators, without whom most of that content would never be made in the
first place. The Representative stated that digital performers deserved a fair share of revenue
generated by making their work available on demand. Regrettably, the mainstreaming of digital
delivery services often turned into a zero benefit equation for them. The Representative stated
that most of its members were routinely made to sign away all their exclusive rights indefinitely,
and for any possible use, including all forms of digital exploitation, in return for one off lump
payment in a digital engagement contract. The Representative encouraged all Member States
to discuss how best intellectual property protection could help performers extract meaningful
value from digital exploitation, in a way that may not be privy to unfair practices. The
Representative believed that supplementary mechanisms guaranteed what performers got
compensated for, as long as their work was stream downloaded or otherwise made available to
the public. The Representative stated that the WIPO Beijing Treaty on audiovisual
performances in its Article 12 Paragraph 3 expressly recognized that possibility independently
of the transfer of their exclusive rights, including, for the making available of their performances
on demand. Such mechanisms may remedy the inherent weakness in the provision of
exclusive right that so many performers were unable to monetize. One possibility available
under the Treaty was original national legislation providing for complementary and unwaivable
use of payments towards visual performers from content service providers and online platforms
subject to mandatory collective management, irrespective of contractual arrangements with the
producer. The Representative stated that in that context, it wished to emphasize the
supplementary mechanisms described in Article 12 Paragraph 3 of the WIPO Beijing Treaty that
could equally be applied in the field of audio performances, even if the WPPT did not contain a
similar express provision. The underlying idea which the Representative endorsed and
supported was not to replace exclusive right with something else, but to make sure that the
appreciation enshrined in the provision of those rights, and the willingness to enable all
performers to earn a decent living from their intellectual property rights, was guaranteed in
practice in both analog and digital environments. The Representative stated that it was a strong
supporter of such solutions that respected existing industry business models and the collected
bargaining process, whilst promoting fairer Internet for performers and recognizing fair
contribution to the creative industry and to cultural diversity.
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282. The Representative of IFPI stated that at the previous SCCR it had suggested that more
information and data be collected and shared on the state of the digital markets, in order to
increase the understanding of the rapidly evolving marketplace. The Representative welcomed
the idea of further study in that area, and it believed that WIPO could play a pivotal role as a
trusted and neutral party in collating and sharing data on the marketplace, both among Member
States and private sector stakeholders. The Representative believed that such information
sharing between the private and public sector was best done outside the forum of SCCR.
283. The Representative of CIS stated that the environment controlling the distribution of
software and digital services, which connected users and developers, assumed significant
importance. The Representative stated that a study after the scoping exercise should
encompass methods in which digital cooperation’s were enforcing their own IP rules and had
fair systems in place to address violations and restorations of works unfairly taken down from
the platforms. The Representative noted that there was a serious lack of transparency as far as
the conduct of such operations. The Representative stated that, in India, it had met several
creators who had suffered as a result of such actions. In that regard, the Representative stated
that it would be useful to know how creators and developing countries were impacted by rules
enforced by platforms largely situated in developed countries.
284. The Representative of CISAC thanked GRULAC for the initiative. The Representative
stated that the proposal by the Delegation of France and the Delegation of the United States of
America on studies was a broad proposal that would need to be considered. The
Representative stated that the economic growth of the last few years had increased the cultural
content. There was a responsibility for artists to be remunerated, and there currently was
obsolete legislation regarding the European Union's directive and the North American
legislation. The Representative believed that that there was an opportunity to correct that
situation and that the proposal for a directive for the digital market which was currently being
debated in the European Parliament was something that could be considered by that
Committee, if it continued on the work that was proposed by GRULAC and the study was
carried out.
285. The Representative of KEI stated that GRULAC had asked the SCCR to take stock of how
copyright systems worked practice, taking into account several important issues, such as how
digital platforms impacted artists and authors and consumers of work. The Representative
stated that it agreed with the United States of America and the European Union that the SCCR
needed to focus on modalities of moving forward. The Representative took note of the side
event by the Delegation of Finland, which showcased tools for evaluating performance of the
national copyright system. The Representative stated that Member States needed to reflect on
the policy intervention that would improve outcomes for artists and consumers when those were
found lacking. A sub topic would be to look at development of standards for metadata attached
to digital copies of works.
286. The Representative of IFLA thanked GRULAC for the proposal to analyze copyright within
the digital environment. The Representative stated that it had supported GRULAC's proposals
in previous sessions, particularly those on exceptions and limitations for libraries and museums
and archives. The Representative believed that those could be effective nationally and could
promote cross-border cooperation. Regarding technological progress, the Representative
stated that the Committee had to ensure that that issue was dealt with differently.
Technological changes had to be considered so that the users and beneficiaries could benefit
from that. The Representative stated that according to the study by Professor Crews, there was
no concern regarding the adoption of national legislation to new technologies. The
Representative thanked GRULAC for mentioning that transparency was vital for dealing with
works, both in their physical and digital formats. There had to be transparency in terms of the
remuneration for the use of works. The Representative stated that there was a lack of
regulation but that regardless of all those challenges, it believed that it was necessary to ensure
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that there was a respect of rights as well as the limitations and exceptions, so that there was
freedom of expression and access to knowledge. The Representative stated that whereas the
sale of work was quantifiable, it was not easy to quantify the value of works in libraries and
museums and archives. The Representative requested that the SCCR carry out an analysis
considering the legislation on works in the digital environment as well as looking at the use of
those works to ensure that there was transparency for the beneficiaries.
287. The Representative of LCA supported the proposal by GRULAC to study the impact of
copyright on the digital environment on copyright. The Representative stated that the Finnish
methodology of assessing the operation of copyright and related rights systems was something
that should perhaps be used in that study. The Representative drew the Committee's attention
to the seventeenth methodology card on the access to copyright works on creation. The
Representative stated that that was a critical issue that often did not receive sufficient attention.
The Representative stated that it was incredibly important to make sure that artists had access
to the raw material from which they could make new creative works. The Internet certainly
facilitated that kind of creativity as well as the distribution of the works. The Representative
stated that that theme very much needed to be reflected in the study suggested by GRULAC.
288. The Chair opened the floor for Member States to make further comments regarding the
proposal by the Delegations of Senegal and the Republic of Congo, to include resale right,
taking note that previous statements had already been made on that topic.
289. The Delegation of the United States of America stated that it saw merit in the proposal by
the Delegations of Senegal and the Republic of Congo, to have a conference, to explore the
resale royalty right. The Delegation stated that in previous sessions of the SCCR, it had made
a request for the WIPO Secretariat to commission a resale right study, which would include
economic evidence that focused on the actual operation of the right at the national level. The
Delegation thought that much would be gained by that. The Delegation stated that at the time
that it made that initial intervention, it thought that the study could inform discussions within the
SCCR. The Delegation stated that such a study could equally inform discussions in the
conference proposed by the Delegations of Senegal and the Republic of Congo.
290. The Delegation of Senegal emphasized its agreement with the point of view expressed by
the Delegation of the United States of America. The Delegation stated that in its proposal, it
had emphasized that the study should take into consideration the economic issues.
291. The Chair stated that the Committee had just discussed two topics contained in Agenda
Item 8, other matters: 1. the proposal to analyze copyright in the digital environment with a
specific proposal to be discussed regarding the possibility to have a study or a scoping study, 2.
the proposal from the Delegations of Senegal and the Republic of Congo to include a resale
right in the agenda of future work of the SCCR, with a proposal to have a meeting or conference
to analyze those specific topics. The Chair invited the Committee to take into account and
consider those topics. The Chair stated that there was mention of the Finnish experience which
could considered useful in analyzing copyright related to the digital environment.
292. The Chair stated that on October 25, former Assistant Director General, Mr. Michael
Keplinger, had passed away. The Chair proposed a moment of silence and opened the floor to
the Delegation of Finland who had a few words to say.
293. The Delegation of Finland stated that a few days ago, it had received a sad message.
The former Deputy Director General of WIPO, Mr. Michael Keplinger had passed away after a
short but severe illness. The Delegation stated that Mr. Michael Keplinger held, over several
decades, various key policymaking positions, serving his country in the administration of the
United States of America. The Delegation stated that Mr. Keplinger had, in addition to his many
national tasks, important roles in many international negotiations, including intellectual property
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and bilateral and multilateral trade instruments, including the TRIPS negotiations, the
preparation and negotiations on the 1996 WIPO treaties, WCT and WPPT, and the Diplomatic
Conference of 2000, the results of which later eventually led to the conclusion of the Beijing
Treaty on audiovisual performances. The Delegation stated that that was only just to mention
some items from his career. Serving as a Deputy Director General of WIPO, Mr. Keplinger left a
lasting and true impression of a fair, honest and remarkably competent policy leader. The
Delegation stated that many individuals in the Committee had known Mr. Keplinger for a long
period of time. The Delegation stated that it had a personal friendship with him extending back
to the very beginning of the ‘80s. The Delegation stated that the Committee would keep a
permanent dear memory of Mr. Keplinger. The Delegation stated that the SCCR as a whole
should convey a message expressing its condolences to Helen, the brave wife of Michael
Keplinger and the whole of his family. The Delegation stated proposed a moment of silence to
commemorate Mr. Michael Keplinger.
294. The Committee observed a moment of silence.
295. The Chair stated that the Committee would have a printed copy of the summary by the
Chair and requested that the Secretariat read it.
296. The Chair stated that it would not read its chart but wanted to make two minor
amendments. The first one was the title, which was Chair's Informal Chart on Limitations and
Exceptions for Libraries and Archives. The Chair stated that it also included a summary of the
remarks by the Chair.
AGENDA ITEM 9: CLOSING OF THE SESSION
297. The Chair opened the floor for final remarks by regional coordinators.
298. The Delegation of Chile speaking on behalf of GRULAC thanked the Chair for its work,
over the years. The Delegation stated that the Chai’s skillful leadership had made it possible to
make progress in the Committee discussions, which had not always been easy. The Delegation
recognized the Chair’s dedication and its tireless work. The Delegation thanked the Vice-Chair
and the Secretariat. The Delegation stated that on the subject of exceptions and limitations for
educational and research institutions, it understood that the revision that Professor Seng will
carry out would include a reference to the impact of the cross border use of works and
reproductions which was the question given to Professor Seng by the Delegation. In terms of
the proposal to analyze copyright in the digital environment from GRULAC, and the specific
proposal made by the Delegation during that session, for a study on the impact of progress in
the digital environment on national copyright legislations, The Delegation stated that as it stated
in Paragraph 25 of the Chair’s summary, the study would be based on document SCCR 31/4.
The Delegation stated that it hoped to be able to continue the work at SCCR 34 on all the items
in the Chair’s summary and also on future proposals to be submitted by Member States.
299. The Delegation of Nigeria, speaking on behalf of the Africa Group, thanked the Chair for
his leadership. The Delegation stated that there was no doubt that the Chair’s expertise and
professionalism, along with support of the Secretariat, enabled the Committee to come that far.
The Delegation hoped that in the following session, the Committee would conclude the pending
discussions on the three areas that had been identified: the definitions, rights to be granted and
objects of protection. The Delegation hope to work on whole document and clean up the text,
with a view to move to a Diplomatic Conference. The Delegation stated that it was not satisfied
with the discussion exceptions and limitations for libraries and archives. The Delegation had
hoped that at that session the Committee could determine a concrete path forward, towards an
international legally binding instrument. The Delegation stated that it was flexible and believed
that the work that the Chair had provided was a good basis, along with the proposals contained
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in its summary, that included the proposal by the Africa Group and the Delegations of Brazil,
India, Uruguay and Ecuador on treaty language for exceptions and limitations for libraries and
archives. The Delegation expressed its hope that Professor Seng's detailed study would
include those four elements in the Chair’s chart that had no comments to them: orphan works,
contracts, importation and exploitation, cross border issues and limitation of liability for
educational institutions. The Delegation stated that in asked for the inclusion of
translations/adaptations to the study that Professor Seng would present to Member States. On
the other matters of the agenda of the SCCR, the Delegation expressed support for the
GRULAC proposal to analyze copyright in the digital environment. The Delegation stated that it
supported the proposal from the Delegations of Senegal and Congo for further work to be done
on royalty resale rights. The Delegation stated that the presentation that was made by
Professor Sam Ricketson highlighted the impact that could especially have for indigenous
artists. That was an area that would impact the African region. The Delegation stated that
while the Africa Group would have appreciated a time frame for all agenda items, it hoped to
come to that point in the following session, as that was the only way that would help to structure
the work of the Committee in the way that enabled it to conclude some agenda items and make
space for new agenda items submitted by Member States. The Delegation thanked the
interpreters for their hard work.
300. The Delegation of Latvia, speaking on behalf of CEBS, thanked the Chair its continuous
efforts in guiding the work of that Committee and the Secretariat for its continuous support.
301. The Delegation of China thanked the Chair and all the regional coordinators and
delegations. The Delegation stated that concerning the broadcasting treaty, it would like to
express its great thanks to the Delegation of Colombia for its proposals. The Delegation
believed that discussions could lay even more emphasis on broadcasting, traditional
broadcasting and other specific terms. The Delegation stated that in a multimedia environment,
it would also like to see new challenges dealt with. As far as it was concerned, it would like to
continue to have a sincere exchange of views. The Delegation thanked Professor Seng for his
study. The Delegation thanked the Chair for its chart which it would like to use as a basis on
which to work.
302. The Delegation of Turkey, speaking on behalf of Group B, thanked the Chair, the ViceChair and the Secretariat. The Delegation thanked the interpreters.
303. The Delegation of India stated that it welcomed the Chair’s summary which captured what
happened in that Committee. The Delegation expressed its concern on the unequal treatment
given to various agenda items, specifically Agenda Items 5, 6 and 7. The Delegation stated that
it gave importance to the work of that Committee to narrow down the existing gap, so as to
finalize the text of a balanced broadcasting treaty. The Delegation stated that it would also like
to have the exceptions and limitations discussion be taken forward, of which the Delegation
asked the Chair to take initiative and come up with a plan of action. The Delegation reiterated
its proposal that the Chair appointing a facilitator or friends of the Chair as it has been done in
IGC, where the facilitator could have informal sessions in which the text for exceptions and
limitations as an instrument could be discussed. The Delegation stated that exceptions and
limitations were important for providing access to knowledge, as well as the principles of right to
education. The Delegation thanked the Secretariat, interpreters, and all of the Member States
for their participation.
304. The Chair Stated that it had been a privilege to listen, talk, learn and be a part of the
Committee, that shared some goals and discussed peacefully different views, finally to reach
consensus. The Chair thanked the interpreters and the Secretariat.
305. The Deputy Director General addressed to the Chair and the Vice-Chair its heartfelt
thanks. The Deputy Director General stated that the Chair had done its work in an extremely
SCCR/33/7
page 87
effective way. The Deputy Director General thanked the interpreters and the translators who
assisted throughout the session, and who worked well on a daily basis. The Deputy Director
General stated that it was extremely grateful for the constructive spirit that it had seen in that
meeting, and thanked the Committee for commitment. The Deputy Director General stated that
the Committee’s work was going in the right direction under the stewardship of the Member
States.
306. The Chair adjourned the Thirty-Third Session of the SCCR.
[Annex follows]
ANNEXE/ANNEX
LISTE DES PARTICIPANTS/LISTOF PARTICIPANTS
I.
MEMBRES/MEMBERS
AFRIQUE DU SUD/SOUTH AFRICA
Kadi PETJE, Senior Manager, Copyright Intellectual Property Office, Pretoria
Sithembile Nokwazi MTSHALI (Ms.), Assistant Director, Economic Relations and Trade,
Department of International Relations and Cooperation, Pretoria
Aynon DOYLE, Regulatory Affairs, Ministry of Communications, Cape Town
Pragashnie ADURTHY (Ms.), First Secretary, Economic and Development, Permanent Mission,
Geneva
ALGÉRIE/ALGERIA
Sami BENCHEIKH EL HOCINE, directeur général, Office national des droits d’auteur et droits
voisins (ONDA), Ministère de la culture, Alger
Fayssal ALLEK, premier secrétaire, Mission permanente, Genève
ALLEMAGNE/GERMANY
Katharina ANTON (Ms.), Staff Counsel, Copyright and Publishing Law, Federal Ministry of
Justice and Consumer Protection, Berlin
Pamela WILLE (Ms.), Counsellor, Permanent Mission, Geneva
ARGENTINE/ARGENTINA
Gustavo SCHÖTZ, Director, Dirección Nacional del Derecho de Autor, Ministerio de Justicia y
Derechos Humanos, Buenos Aires
María Inés RODRÍGUEZ (Sra.), Consejera, Misión Permanente, Ginebra
ARMÉNIE/ARMENIA
Ara ABGARYAN, Head, State Registers Department, Intellectual Property Agency, Yerevan
AUSTRALIE/AUSTRALIA
Kirsti HAIPOLA (Ms.), Assistant Secretary, Department of Communications and the Arts,
Sydney
SCCR/33/7
Annex, page 2
Felicity HAMMOND (Ms.), First Secretary, Permanent Mission, Geneva
Amy LEE (Ms.), Consultant, Geneva
BAHAMAS
Bernadette BUTLER (Ms.), Minister-Counsellor, Permanent Mission, Geneva
BÉLARUS/BELARUS
Aleksei BICHURIN, Head, Copyright Collective Management Department, National Center of
Intellectual Property, Minsk
BELGIQUE/BELGIUM
Sandrine PLATTEAU (Mlle), premier secrétaire, Mission permanente, Genève
BHOUTAN/BHUTAN
Tshering WANGMO, Chief Officer, Intellectual Property, Department of Intellectual Property,
Ministry of Economic Affairs, Thimphu
BRÉSIL/BRAZIL
Daniel Lisbôa PEREIRA, Advisor, Intellectual Property Division, Brasília
Rodolfo TSUNETAKA TAMANAHA, Director, Department of Intellectual Rights, Ministry of
Culture, Brasilia
Daniel PINTO, Counselor, Head, Intellectual Property Division, Ministry of Foreign Relations,
Brasilia
Adriana Souza de SIQUEIRA (Ms.), Assistant, Permanent Mission, Geneva
Rodrigo MENDES ARAUJO, First Secretary, Permanent Mission to the World Trade
Organization (WTO), Geneva
BULGARIE/BULGARIA
Rakovski LASHEV, Ambassador, Deputy Permanent Representative, Permanent Mission,
Geneva
CAMEROUN/CAMEROON
Rodrigue NGANDO SANDJE, chef, Cellule du contentieux, Division des affaires juridiques,
Ministères des arts et de la culture, Yaoundé
SCCR/33/7
Annex, page 3
Boubakar LIKIBY, secrétaire permanent, Comité national de développement des technologies,
Ministère de la recherche scientifique et de l’Innovation, Yaoundé
CANADA
Samuel GENEROUX, Policy Advisor, Copyright and International Trade Policy Branch,
Canadian Heritage, Gatineau
Luc LAFORET, Director, Copyright and Trademark Policy Directorate, Ottawa
Frédérique DELAPRÉE (Ms.), Second Secretary, Permanent Mission to the World Trade
Organization (WTO), Geneva
CHILI/CHILE
Karen Alejandra SOTO (Sra.), Abogada, Gabinete Ministro, Santiago de Chile
Tatiana LARREDONDA (Sra.), Asesora Legal, Departamento de Propiedad Intelectual,
Dirección General de Relaciones Económicas Internacionales, Ministerio de Relaciones
Exteriores, Santiago de Chile
Marcela PAIVA (Sra.), Consejera, Misión Permanente ante la Organización Mundial del
Comercio (OMC), Ginebra
CHINE/CHINA
YU Cike, Director-General, Copyright Department, National Copyright Administration of
China (NCAC), Beijing
HU Ping (Ms.), Deputy Director, Social Services Division, Copyright Department, National
Copyright Administration of China (NCAC), Beijing
WANG Jianqiang, Deputy Director, Division of Policies and Regulations for Radio, Film and
Television, Law and Regulation Department, National Copyright Administration of China
(NCAC), Beijing
ZHANG Wenlong, Program Officer, International Affairs Division, Copyright Department,
National Copyright Administration of China (NCAC), Beijing
QIAN Yuangang, Director General, Shaanxi Provincial Copyright Bureau, Beijing
JI Bingxue, Assistant Director-General, Liaoning Provincial Copyright Bureau, Beijing
BAI Jingzhao, Chairman, Fujian Provincial Copyright Society, Beijing
ZHENG Kaipi, Assistant Consultant, Copyright Division, Fujian Provincial Copyright Bureau,
Beijing
CHEN Jindian, Director, Dehua Bureau of Culture, Sports, Press and Publication, Beijing
LEI Zhen, Vice President, Guangdong South Cultural Equity Exchange, Beijing
SCCR/33/7
Annex, page 4
CHYPRE/CYPRUS
Andreas IGNATIOU, Ambasador, Permanent Representative, Permanent Mission, Geneva
Demetris SAMUEL (Ms.), Deputy Ambassador, Permanent Representative, Permanent Mission,
Geneva
Christina TSENTA (Ms.), Second Secretary, Permanent Mission, Geneva
COLOMBIE/COLOMBIA
Beatriz LONDOÑO SOTO (Sra.), Embajadora, Representante Permanente, Misión
Permanente, Ginebra
Manuel CHACON, Asesor, Misión Permanente ante la Organización Mundial del
Comercio (OMC), Ginebra
Juan Camilo SARETZKI, Consejero, Misión Permanente, Ginebra
COSTA RICA
Hazel JIMÉNEZ ZAMORA (Sra.), Tribunal Registral Administrativo, Registro Nacional,
Ministerio de Justicia y Paz, San Jose
Agustín MELÉNDEZ GARCÍA, Sub Director General, Registro Nacional, Ministerio de Justicia y
Paz, San Jose
Norma UREÑA BOZA (Sra.), Tribunal Registral Administrativo, Registro Nacional, Ministerio de
Justicia y Paz, San Jose
CÔTE D'IVOIRE
Kumou MANKONGA, premier secrétaire, Mission permanente, Genève
CUBA
Ernesto VILA GONZÁLEZ, Director General, Dirección General, Centro Nacional de Derecho
de Autor, La Habana
Madelyn RODRIGUEZ LARA (Sra.), Primera Secretaria, Misión Permanente, Ginebra
DANEMARK/DENMARK
Marie Agerlin LUND (Ms.), Head, Copyright Section, Ministry of Culture, Copenhagen
SCCR/33/7
Annex, page 5
DJIBOUTI
Hassan DAHER ROBLEH, directeur général adjoint, Office djiboutien de droits d’auteur et droits
voisin, Ministère des affaires musulmanes, de la culture et de biens, Djibouti Ville
EL SALVADOR
Jorge Camilo TRIGUEROS GUEVARA, Negociador, Propiedad Intelectual,
Ministerio de Economia, San Salvador
Diana HASBUN (Sra.), Ministra Consejera, Misión Permanente, Ginebra
EMIRATS ARABES UNIS/UNITED ARAB EMIRATES
Shaima AL-AKEL (Ms.), International Organizations Executive, Permanent Mission to the World
Trade Organization (WTO), Geneva
ÉQUATEUR/ECUADOR
Santiago CEVALLOS MENA, Director Nacional de Derecho de Autor y Derechos Conexos,
Dirección Nacional de Derecho de Autor y Derechos Conexos, Instituto Ecuatoriano de la
Propiedad Intelectual (IEPI), Quito
Pablo ESCOBAR, Primer Secretario, Misión Permanente, Ginebra
Nusta MALDONADO (Ms.), Tercer Secretaria, Misión Permanente, Ginebra
ESPAGNE/SPAIN
Edurdo ASENSIO LEYVA, Subdirector Adjunto Propiedad Intelectual, Ministerio de Educación,
Cultura y Deporte, Madrid
Lucía GUTIÉRREZ GARCÍA (Sra.), Jefa de Área, Subdirección General de Propiedad
Intelectual, Ministerio de Educación, Cultura y Deporte, Madrid
Oriol ESCALAS NOLLA, Primer Secretario, Misión Permanente, Ginebra
ESTONIE/ESTONIA
Veikko MONTONEN, Second Secretary, Permanent Mission, Geneva
ÉTATS-UNIS D’AMÉRIQUE/UNITED STATES OF AMERICA
Michael SHAPIRO, Senior Counsel, Copyright, United States Patent and Trademark
Office (USPTO), Department of Commerce, Alexandria, Virginia
SCCR/33/7
Annex, page 6
Stephen RUWE, Attorney Advisor, Office of Policy and International Affairs, United States
Patent and Trademark Office (USPTO), Alexandria
Kristine SCHLEGELMILCH (Ms.), Intellectual Property Attaché, Geneva
Molly Torsen STECH (Ms.), Attorney Advisor, Office of Policy and International Affairs, United
States Patent and Trademark Office (USPTO), Alexandria
Emily TEDESCO (Ms.), Foreign Affairs Officer, Office of International Intellectual Property
Enforcement, Department of State, Washington, DC
Nancy WEISS (Ms.), General Counsel, United States Institute of Museum and Library Services
(IMLS), Washington, D.C.
Kimberley ISBELL (Ms.), Senior Counsel, Policy and International Affairs, U.S. Copyright Office,
Washington
Yasmine FULENA (Ms.), Intellectual Property Assistant, Geneva
FÉDÉRATION DE RUSSIE/RUSSIAN FEDERATION
Ivan BLIZNETS, Rector, Russian State Academy for Intellectual Property (RGAIS), Moscow
Mariia KIRICHENKO (Ms.), Principal Advisor, Ministry of Economic Development, Moscow
FINLANDE/FINLAND
Jukka LIEDES, Chairman, Finnish Copyright Society, Helsinki
Tiina KAUTIO (Ms.), Project Manager, Helsinki
Nathalie LEFEVER (Ms.), Researcher, Helsinki
Anna VUOPALA (Ms.), Government Counsellor, Ministry of Educational Culture, Helsinki
FRANCE
Julien PLUBEL, rédacteur, Pôle de l'audiovisuel extérieur, Ministère des affaires étrangères et
du développement international, Paris
Ludovic JULIÉ, chargé de mission, Bureau de la propriété intellectuelle, Ministère de la culture
et de la communication, Paris
GABON
Marianne Odette BIBALOU BOUNDA (Mme), ambassadeur, représentant permanent, Mission
permanente, Genève
Edwige KOUMBY MISSAMBO (Mme), premier conseiller, Mission permanente, Genève
SCCR/33/7
Annex, page 7
GRÈCE/GREECE
Irini STAMATOUDI (Ms.), General Director, Hellenic Copyright Organization, Ministry of Culture
and Sports, Athens
Rhea TSITSANI (Ms.), First Counselor, Economic and Commercial Affairs, Permanent Mission,
Geneva
GUATEMALA
Genera GOMEZ PINEDA DE ESTRADA, Responsable de Registro de Obras, Departamento
Derecho de Autor, Guatemala
Flor de María GARCÍA DIAZ (Sra.), Consejera, Misión Permanente ante la Organización
Mundial del Comercio (OMC), Ginebra
HAÏTI/HAITI
Emmelie Ciriaque MILCE PROPHETE (Mme), Directrice Générale, Bureau haïtien du droit
d'auteur, Ministère de la communication et de la culture, Port-au-Prince
HONDURAS
Giampaolo RIZZO-ALVARADO, Embajador, Representante Permanente Adjunto, Misión
Permanente, Ginebra
Harrison REYES GUILLEN, Oficial Juridico, Oficina Administrativa del Derecho d Autor y de Los
Derechos Conexos, Instituto de la Propiedad, Direccion General de Propiedad Intelectual,
Tegucigalpa
Gilliam Noemi GÓMEZ GUIFARRO (Sra.), Primera Secretaria, Misión Permanente, Ginebra
Gerson Ruiz GUILTY, Intern, Ginebra
HONGRIE/HUNGARY
Péter MUNKÁCSI, Senior Adviser, Department for Codification of Competition, Consumer
Protection and Intellectual Property, Ministry of Justice, Budapest
Kinga ZUGH (Ms.), Legal Officer, Copyright Department, Hungarian Intellectual Property Office,
Budapest
INDE/INDIA
Jagdish SWAROOP, Deputy Registrar, Copyrights and Licensing Officer, New Delhi
Paul VIRANDER, Deputy Permanent Representative, Permanent Mission, Geneva
SCCR/33/7
Annex, page 8
Sumit SETH, First Secretary, Economic Affairs, Permanent Mission, Geneva
INDONÉSIE/INDONESIA
Erni WIDHYASTARI (Ms.), Director, Directorate of Copyrights and Industrial Design, Directorate
General of Intellectual Property, Ministry of Law and Human Rights, Jakarta
Franc ORLANDO, Head of Legislation, Legal and Public Communications Bureau, Indonesian
Agency for Creative of Economy, Jakarta
Mariaman PURBA (Ms.), Head, Law and Public Communication Department, Indonesian
Creative Economy Agency, Jakarta
Rikson SITORUS, Head of Section, Public Communication Section, Indonesian Creative
Economy Agency, Jakarta
Aryudhi SAPUTRA, Legal Officer, Public Communications Bureau, Indonesian Agency for
Creative Economy, Jakarta
Erry Wahyu PRASETYO, Third Secretary, Permanent Mission, Geneva
IRAN (RÉPUBLIQUE ISLAMIQUE D’)/IRAN (ISLAMIC REPUBLIC OF)
Dariush ASHRAFI, Legal Advisor, Islamic Republic of Iran Broadcasting (IRIB), General Office
for Intellectual Property Rights, Tehran
Reza DEHGHANI, First Secretary, Permanent Mission, Geneva
IRAQ
Jaber AL-JABERI, Senior Undersecretary, Ministry of Culture, Undersecretary’s Office,
Baghdad
Hind Ismail KHALEEL, Director, Copyright Office, Ministry of Culture, Baghdad
Baqir RASHEED, Second Secretary, Permanent Mission, Geneva
ISRAËL/ISRAEL
Dan ZAFRIR, Adviser, Permanent Mission, Geneva
Ayelet FELDMAN (Ms.), Legal Counsel, Ministry of Justice, Jerusalem
Judith GALILEE-METZER (Ms.), Counselor, Permanent Mission, Geneva
SCCR/33/7
Annex, page 9
ITALIE/ITALY
Vittorio RAGONESI, Legal Adviser, Ministry of Foreign Affairs, Rome
Alessandro MANDANICI, First Secretary, Permanent Mission, Geneva
Matteo EVANGELISTA, First Secretary, Permanent Mission, Geneva
Carlo FAVARETTO, Intern, Permanent Mission, Geneva
JAPON/JAPAN
Hirohisa OHSE, Deputy Director, Intellectual Property Affairs Division, Ministry of Foreign
Affairs, Tokyo
Ryoei CHIJIIWA, First Secretary, Permanent Mission, Geneva
Yoshihito KOBAYASHI, Deputy Director, International Affairs Division, Agency for Cultural
Affairs, Tokyo
Koji KITAYAMA, Director, International Affairs Division, Agency for Cultural Affairs, Tokyo
KAZAKHSTAN
Maxat ZHAXYBAEV, Director, Legal Department, Ministry of Culture and Sports, Astana
Saltanat NURIMBETOVA (Ms.), Deputy Director, Intellectual Property Rights,
Ministry of Justice, Astana
Asem OTEGENOVA (Ms.), Head, Electronic Resources Center, Scientific Library,
Kazakh-British Technical University, Almaty
KENYA
EDWARD SIGEI, Executive Director, Kenya Copyright Board (KECOBO), Nairobi
Peter KAMAU, Counselor, Permanent Mission, Geneva
Stanley MWENDIA, Expert, Permanent Mission, Geneva
LIBAN/LEBANON
Wissam EL AMIL, Head, Intellectual Property Unit, Ministry of Economy and Trade, Beirut
Rana EL KHOURY (Ms.), First Secretary, Permanent Mission, Geneva
SCCR/33/7
Annex, page 10
MALAWI
Dora Susan MAKWINJA (Ms.), Copyright Administrator, Copyright Society of Malawi
(COSOMA), Ministry of Civic Education, Culture and Community Development, Lilongwe
MALTE/MALTA
Edward GRIMA BALDACCHINO, Technical Attaché, Intellectual Property, Permanent Mission
Geneva
Marie Claire VELLA (Ms.), Technical Attaché, Permanent Mission, Geneva
MAROC/MOROCCO
Mohamed Reda OUDGHIRI IDRISSI, conseiller, Mission permanente, Genève
MEXIQUE/MEXICO
Jorge LOMÓNACO, Embajador, Representante Permanente, Misión Permanente, Ginebra
Raúl HEREDIA ACOSTA, Embajador, Representante Permanente Alterno, Ginebra
Manuel GUERRA ZAMARRO, Director General, Instituto Nacional del Derecho de
Autor (INDAUTOR), México, D.F.
María del Pilar ESCOBAR BAUTISTA (Sra.), Consejera, Misión Permanente, Ginebra
Federico SAAVEDRA, Asistente, Misión Permanente, Ginebra
MOZAMBIQUE
Pedro COMISSARIO, Ambassador, Permanent Representative, Permanent Mission, Geneva
Felisbela Maria DE OLIVEIRA GASPAR (Ms.), Traditional Medicine Institute, Ministry of Health,
Maputo
NÉPAL/NEPAL
Shankar Prasad ADHIKARI, Secretary, Ministry of Culture, Tourism and Civil Aviation,
Kathmandu
Rajendra SIGDEL, Registrar, Copyright Registrar's Office, Ministry of Culture, Tourism and Civil
Aviation, Kathmandu
NIGÉRIA/NIGERIA
Peters S.O. EMUZE, Chargé d'affaires, Permanent Mission, Geneva
SCCR/33/7
Annex, page 11
Osondu Bartholomew Collins NWEKE, Assistant Director, Nigerian Copyright
Commission (NCC), Abuja
Michael Okon AKPAN, Head, Regulatory Department, Copyright Commission, Federal
Secretariat, Abuja
Chichi UMESI (Ms.), First Secretary, Permanent Mission, Geneva
NOUVELLE-ZÉLANDE/NEW ZEALAND
Jessica BIRDSALL-DAY (Ms.), Senior Policy Advisor, Commerce, Consumers and
Communications Branch, Ministry of Business, Innovation & Employment, Wellington
OMAN
Aysha AL BULUSHI (Ms.), Trademark Researcher, Trademark Section, Ministry of Commerce
and Industry, Muscat
Badriya AL RAHBI (Ms.), Head, Copyright Section, Intellectual Property Office, Ministry of
Commerce and Industry, Muscat
PÉROU/PERU
Martín MOSCOSO, Experto, Lima
Luis MAYAUTE VARGAS, Consejero, Misión Permanente, Ginebra
PHILIPPINES
Cecilia REBONG (Ms.), Ambassador, Permanent Representative, Permanent Mission, Geneva
Richard BURGOS, Director, Science and Technology Information Institute, Department of
Science and Technology, Manila
Edgar GARCIA, Director, Department of Science and Technology, Technology Application and
Promotion Institute, Taguig City
Louie Andrew CALVARIO, Attorney, Office of the Director General, Intellectual Property Office,
Taguig City
Maria Teresa ALMOJUELA (Ms.), Deputy Permanent Representative, Permanent Mission,
Geneva
Jayroma BAYOTAS (Ms.), Attaché, Permanent Mission, Geneva
Josephine MARIBOJOC (Ms.), Assistant Secretary, Legal Affairs, Department of Education,
Manila
SCCR/33/7
Annex, page 12
Arnel TALISAYON, First Secretary, Permanent Mission, Geneva
POLOGNE/POLAND
Kinga SZELENBAUM (Ms.), Specialist, Department of Intellectual Property and Media, Ministry
of Culture and National Heritage, Warsaw
Wojciech PIATKOWSKI, Minister Counsellor, Permanent Mission, Geneva
PORTUGAL
João PINA DE MORAIS, First Secretary, Permanent Mission, Geneva
QATAR
Ali AL-THANI, Head, Permanent Mission to the World Trade Organization (WTO), Geneva
Amna AL-KUWARI (Ms.), Attaché, Permanent Mission to the World Trade Organization (WTO),
Geneva
Saleh AL-MANA, Attaché, Permanent Mission to the World Trade Organization (WTO), Geneva
Mohammad EL SAID, Consultant, Permanent Mission to the World Trade Organization (WTO),
Geneva
RÉPUBLIQUE DE CORÉE/REPUBLIC OF KOREA
KIM Sungyeol, Deputy Director, Ministry of Culture, Sports and Tourism, Sejong
LEE Eunbin (Ms.), Judge, Seoul
LEE You Jin (Ms.), Assistant Director, Copyright Policy Division, Ministry of Culture, Sports and
Tourism, Sejong-si
RÉPUBLIQUE DE MOLDOVA/REPUBLIC OF MOLDOVA
Lilia VERMEIUC (Ms.), Head, Copyright and Related Rights Department, State Agency on
Intellectual Property of the Republic of Moldova, Chisinau
RÉPUBLIQUE DOMINICAINE/DOMINICAN REPUBLIC
Ysset ROMAN (Ms.), Minister Counsellor, Permanent Mission, Geneva
RÉPUBLIQUE POPULAIRE DÉMOCRATIQUE DE CORÉE/DEMOCRATIC PEOPLE'S
REPUBLIC OF KOREA
SCCR/33/7
Annex, page 13
JONG Myong Hak, Counsellor, Permanent Mission in Geneva, Geneva
RÉPUBLIQUE TCHÈQUE/CZECH REPUBLIC
Adéla FALADOVÁ (Ms.), Deputy Director, Copyright Department, Ministry of Culture, Prague
ROUMANIE/ROMANIA
Cristian FLORESCU, Head of International Relations Department, International Relations
Department, Romanian Copyright Office, Bucharest
ROYAUME-UNI/UNITED KINGDOM
Neil COLLETT, Head of European and International Copyright, Copyright and IP Enforcement
Directorate, United Kingdom Intellectual Property Office (UKIPO), Newport
Rhian DOLEMAN (Ms.), Senior Policy Advisor, United Kingdom Intellectual Property
Office (UKIPO), Newport
Faizul AZMAN, Senior Policy Advisor, Intellectual Property Office, London
SAINT-SIÈGE/HOLY SEE
Carlo Maria MARENGHI, Attaché, Permanent Mission, Geneva
SÉNÉGAL/SENEGAL
Abdoul Aziz DIENG, conseiller technique, Ministère de la culture et de la communication, Dakar
Lamine Ka MBAYE, premier secrétaire, Mission permanente, Genève
SERBIE/SERBIA
Branka TOTIĆ (Ms.), Legal Advisor, Intellectual Property Office, Belgrade
SCCR/33/7
Annex, page 14
SLOVAQUIE/SLOVAKIA
Magdaléna JUSKOVÁ (Ms.), Legal Adviser, Copyright Unit, Ministry of Culture, Bratislava
Jakub SLOVAK, Third Secretary, Permanent Mission, Geneva
SRI LANKA
Beligaha Gedera Peterlage Sheitha DE SILVA SENARATHNA (Ms.), Additional Secretary of
Commerce, Ministry of Industry and Commerce, Colombo
SUÈDE/SWEDEN
Henry OLSSON, Special Government Adviser, Division for Intellectual Property and Transport
Law, Ministry of Justice, Stockholm
Mattias RÄTTZÉN, Adviser, Division for Intellectual Property and Transport Law, Ministry of
Justice, Stockholm
SUISSE/SWITZERLAND
Ulrike Irene HEINRICH (Mme), conseillère juridique, Division du droit et affaires internationales,
Institut fédéral de la propriété intellectuelle, Berne
Lena LEUENBERGER (Mme), conseillère juridique, Division du droit et affaires internationales,
Institut fédéral de la propriété intellectuelle, Berne
Daphne RÖÖSLI (Mme), stagiaire, Division du droit et affaires internationales, Institut fédéral de
la propriété intellectuelle, Berne
Constanze SEMMELMANN (Mme), conseillère juridique, Division du droit et affaires
internationales, Institut fédéral de la propriété intellectuelle, Berne
Reynald VEILLARD, conseiller juridique, Division du droit et affaires internationales, Institut
fédéral de la propriété intellectuelle, Berne
THAÏLANDE/THAILAND
Vipatboon KLAOSOONTORN (Ms.), Senior Legal Officer, Department of Intellectual Property,
Copyright Office, Ministry of Commerce, Bangkok
Patamaporn CHINMANEEWONG (Ms.), Legal Officer, Department of Intellectual Property,
Ministry of Commerce, Nonthaburi
Sudkhet BORIBOONSRI, Counsellor, Permanent Mission of Thailand to the World Trade
Organization (WTO), Geneva
SCCR/33/7
Annex, page 15
TURQUIE/TURKEY
Belgin ASLAN (Ms.), Expert, Directorate General, Copyright Office, Ministry of Culture and
Tourism, Ankara
Tugba ÇILDIR (Ms.), Expert, Directorate General, Copyright Officer, Ministry of Culture and
Tourism, Ankara
Osman GOKTURK, Second Secretary, Permanent Mission to the World Trade
Organization (WTO), Geneva
UKRAINE
Antonina MALYSH (Ms.), Acting Chairperson, State Intellectual Property Service, Kyiv
Sergii ZAIANCHUKOVSKYI, Head, Department of Copyright and Related Rights, Ministry of
Economic Development and Trade, State Intellectual Property Service, State Enterprise, Kyiv
URUGUAY
Juan José BARBOZA CABRERA, Consejero, Misión Permanente ante la Organización Mundial
del Comercio (OMC), Ginebra
Silvia PEREZ DIAZ (Ms.), Presidenta Consejera de Derecho de Autor, Montevideo
VIET NAM
BUI Nguyen Hung, Director General, Copyright Office, Ministry of Culture, Sport and Tourism,
Hanoi
MAI Van Son, Counsellor, Permanent Mission, Geneva
YÉMEN/YEMEN
Mohammed Saleh Yahya HAILAN, Director, Cinema and Video Department, Ministry of Culture,
Sana'a
Hussein AL-ASHWAL, Third Secretary, Permanent Mission, Geneva
II.
OBSERVATEURS/OBSERVERS
PALESTINE
Ibrahim MUSA, Counsellor, Permanent Mission, Geneva
SCCR/33/7
Annex, page 16
III.
DÉLÉGATIONS MEMBRES SPÉCIALES/SPECIAL MEMBER DELEGATIONS
UNION EUROPÉENNE (UE)*/EUROPEAN UNION (EU)*
Thomas EWERT, Legal and Policy Officer, Digital Economy and Coordination, European
Commission, Brussels
Sabina TSAKOVA (Ms.), Legal and Policy Officer, Digital Economy and Coordination, European
Commission, Brussels
Agata Anna GERBA (Ms.), Policy Officer, Copyright Unit, Directorate General Connect,
European Commission, Brussels
Oliver HALL-ALLEN, First Counsellor, Permanent Delegation, Geneva
Lucas VOLMAN, Intern, United Nations Office, Geneva
IV.
ORGANISATIONS INTERGOUVERNEMENTALES/
INTERGOVERNMENTAL ORGANIZATIONS
CENTRE SUD (CS)/SOUTH CENTRE (SC)
Viviana MUÑOZ TELLEZ (Ms.), Coordinator, Development, Innovation and Intellectual Property
Programme, Geneva
Nirmalya SYAM, Programme Officer, Innovation and Access to Knowledge Programme,
Geneva
Bing HAN (Ms.), Research Fellow, Geneva
Yujiao CAI (Ms.), Intern, Geneva
ORGANISATION DE COOPÉRATION ISLAMIQUE (OCI)/ORGANIZATION OF ISLAMIC
COOPERATION (OIC)
Halim GRABUS, Counsellor, Permanent Delegation, Geneva
ORGANISATION INTERNATIONALE DE LA FRANCOPHONIE (OIF)
Ridha BOUABID, ambassadeur, Délégation permanente, Mission permanente Genève
Antoine BARBRY, conseiller, Mission permanente, Genève
*
Sur une décision du Comité permanent, la Communauté européenne a obtenu le statut de membre sans droit
de vote.
*
Based on a decision of the Standing Committee, the European Community was accorded member status
without a right to vote.
SCCR/33/7
Annex, page 17
Oumou WARR (Mme), attaché, Mission permanente, Genève
ORGANISATION MONDIALE DU COMMERCE (OMC)/WORLD TRADE
ORGANIZATION (WTO)
Wolf MEIER-EWERT, Counsellor, Geneva
Hannu WAGER, Counsellor, Intellectual Property Division, Geneva
UNION AFRICAINE (UA)/AFRICAN UNION (AU)
Georges-Rémi NAMEKONG, ministre conseiller, Délégation permanente, Genève
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Annex, page 18
V.
ORGANISATIONS NON GOUVERNEMENTALES/
NON-GOVERNMENTAL ORGANIZATIONS
African Library and Information Associations and Institutions (AfLIA)
Helena ASAMOAH-HASSAN (Ms.), Executive Director, Accra
Archives et Records Association (ARA)/Archives and Records Association (ARA)
Susan CORRIGAL (Ms.), Chief Executive, Taunton, England
Agence pour la protection des programmes (APP)
Didier ADDA, conseil en propriété industrielle, Paris
Alianza de Radiodifusores Iberoamericanos para la Propiedad Intelectual (ARIPI)
José Manuel GÓMEZ BRAVO, Delegado, Madrid
Felipe SAONA, Delegado, Zug
Armando MARTÍNEZ, Delegado, México, D.F.
Associación Argentina de Intérpretes (AADI)
Susana RINALDI (Sra.), Directora de Relaciones Internacionales, Buenos Aires
Jorge BERRETA, Experto en Relaciones Internacionales, Buenos Aires
Martín MARIZCURRENA, Consultor de Asuntos Internacionales, Buenos Aires
Association de gestion internationale collective des œuvres audiovisuelles
(AGICOA)/Association for the International Collective Management of Audiovisual
Works (AGICOA)
Vera CASTANHEIRA (Ms.), Head, Legal and Licensing, Geneva
Association des organisations européennes d'artistes interprètes (AEPO-ARTIS)/Association of
European Perfomers' Organizations (AEPO-ARTIS)
Xavier BLANC, Secretary General, Bruxelles
Association des télévisions commerciales européennes (ACT)/Association of Commercial
Television in Europe (ACT)
Emilie ANTHONIS (Ms.), European Affairs Advisor, Brussels
Association européenne des étudiants en droit (ELSA international)/European Law Students’
Association (ELSA International)
Maximillian SCHLEGEL, Head of Delegation, Brussels
Andrea BUTICCHI (Ms.), Delegate, Brussels
Izabela SZKLARCZYK (Ms.), Delegate, Brussels
Justyna URBANOWSKA (Ms.), Delegate, Brussels
Octavia Alexa VLAD (Ms.), Delegate, Brussels
Asociación internacional de radiodifusión (AIR) /International Association of Broadcasting (IAB)
Juan ANDRÉS LERENA, Director General, Montevideo
Nicolás NOVOA, Miembro, Montevideo
Edmundo REBORA, Miembro, Montevideo
Association internationale des éditeurs scientifiques, techniques et médicaux
(STM)/International Association of Scientific Technical and Medical Publishers (STM)
Carlo SCOLLO LAVIZZARI, Attorney, Basel
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Annex, page 19
Association internationale pour la protection de la propriété intellectuelle (AIPPI)/International
Association for the Protection of Intellectual Property (AIPPI)
Shiri KASHER-HITIN (Ms.), Observer, Zurich
Association internationale pour le développement de la propriété intellectuelle
(ADALPI)/International Society for the Development of Intellectual Property (ADALPI)
Ania JEDRUSIK (Ms.), Expert, Geneva
Association littéraire et artistique internationale (ALAI)/International Literary and Artistic
Association (ALAI)
Victor NABHAN, Past President, Paris
Association mondiale des journaux (AMJ)/World Association of Newspapers (WAN)
Holger ROSENDAL, Head of Legal Department, Copenhagen
Canadian Copyright Institute (CCI)
William HARNUM, Treasurer, Toronto
Marcia LEA (Ms.), Acting Executive Director, Canadian Artists' Representation, Ottawa
Darrah TEITEL (Ms.), Director, Ottawa
Central and Eastern European Copyright Alliance (CEECA)
Mihály FICSOR, Chairman, Budapest
Centre de recherche et d'information sur le droit d'auteur (CRIC)/Copyright Research and
Information Center (CRIC)
Shinichi UEHARA, Visiting Professor, Graduate School of Kokushikan University, Tokyo
Hajime AKIYAMA, Research Fellow, Japan Society for the Promotion of Science, Tokyo
Centre d'études internationales de la propriété intellectuelle (CEIPI)/Centre for International
Intellectual Property Studies (CEIPI)
François CURCHOD, chargé de Mission, Genolier
Centre for Internet and Society (CIS)
Anubha SINHA (Ms.), Programme Officer, Delhi
Centre international pour le commerce et le développement durable (ICTSD)/International
Center for Trade and Sustainable Development (ICTSD)
Pedro ROFFE, Senior Associate, Geneva
Jimena SOTELO (Ms.), Junior Programme Officer, Geneva
Chamber of Commerce and Industry of the Russian Federation (CCIRF)
Elena KOLOKOLOVA (Ms.), Representative, Geneva
Civil Society Coalition (CSC)
Melissa HAGEMANN (Ms.), Fellow, Washington, D.C
Comité "acteurs, interprètes" (CSAI)/Actors, Interpreting Artists Committee (CSAI)
José Maria MONTES, Asesor, MADRID
Communia
Aleksander TARKOWSKI, President, Warsaw
Teresa NOBRE (Ms.), Legal Expert on Copyright (Observer), Lisboa
SCCR/33/7
Annex, page 20
Confédération internationale des éditeurs de musique (CIEM)/International Confederation of
Music Publishers (ICMP)
Ger HATTON (Ms.), Director General, Brussels
Confédération internationale des sociétés d'auteurs et compositeurs (CISAC)/International
Confederation of Societies of Authors and Composers (CISAC)
Leonardo DE TERLIZZI, Legal Counsel, Neuilly sur Seine
Gadi ORON, Director General, Neuilly sur Seine
Conseil britannique du droit d'auteur (BCC)/British Copyright Council (BCC)
Andrew YEATES, Director, London
Conseil des éditeurs européens (EPC)/European Publishers Council (EPC)
Jens BAMMEL, Observer, Geneva
Conseil international des archives (CIA)/International Council on Archives (ICA)
Didier GRANGE, Special Counsellor, Genève
Jean DRYDEN (Ms.), Copyright Policy Expert, Toronto
Creative Commons Corporation
Browne DELIA (Ms.), National Copyright Director, Copyright Advisory Group to Education
Council, Sydney
Daisy Consortium (DAISY)
Olaf MITTELSTAEDT, Implementer, Chêne-Bourg
Digital Video Broadcasting (DVB)
Carter ELTZROTH, Legal Director, Geneva
Electronic Information for Libraries (eIFL.net)
Teresa HACKETT (Ms.), Programme Manager, Vilnius
Pratyush Nath UPRETI, Vilnius
European Bureau of Library, Information and Documentation Associations (EBLIDA)
Vincent BONNET, Director, The Hague
European Visual Artists (EVA)
Carola STREUL (Ms.), Secretary General, Brussels
Mats LINDBERG, Member, Stockholm
Fédération européenne des sociétés de gestion collective de producteurs pour la copie privée
audiovisuelle (EUROCOPYA)
Yvon THIEC, General Delegate, Brussels
Fédération ibéro-latino-américaine des artistes interprètes ou exécutants (FILAIE)/Ibero-LatinAmerican Federation of Performers (FILAIE)
Luis COBOS, Presidente, Madrid
Miguel PÉREZ SOLÍS, Asesor Jurídico de la Presidencia, Madrid
Paloma LÓPEZ (Sra.), Miembro del Comité Jurídico, Departamento Jurídico, Madrid
José Luis SEVILLANO, Presidente del Comité Técnico, Madrid
SCCR/33/7
Annex, page 21
Fédération internationale de la vidéo (IFV)/International Video Federation (IVF)
Benoît MÜLLER, Legal Advisor, Brussels
Scott MARTIN, Consultant, Los Angeles
Fédération internationale de l'industrie phonographique (IFPI)/International Federation of the
Phonographic Industry (IFPI)
Lauri RECHARDT, Director of Licensing and Legal Policy, London
Fédération internationale des acteurs (FIA)/International Federation of Actors (FIA)
Dominick LUQUER, General Secretary, Brussels
Bjørn HØBERG-PETERSEN, Senior Legal Adviser, Copenhagen
Fédération internationale des associations de bibliothécaires et des bibliothèques
(FIAB)/International Federation of Library Associations and Institutions (IFLA)
Winston TABB, Sheridan Dean of University Libraries, Johns Hopkins University,
Baltimore, MD
Katharina BEBERWEIL (Ms.), Delegation Member, The Hague
Ariadna MATAS CASADEVALL (Ms.), Member, The Hague
Tomas LIPINSKI, Dean and Professor, Milwaukee
Dudley Stephen WYBER, Policy and Research Officer, The Hague
Fédération internationale des journalistes (FIJ)/International Federation of Journalists (IFJ)
Mike HOLDNERNESS (Ms.), Chair, London
Fédération internationale des musiciens (FIM)/International Federation of Musicians (FIM)
Benoit MACHUEL, General Secretary, Nice
Fédération internationale des organismes gérant les droits de reproduction (IFRRO)/
International Federation of Reproduction Rights Organizations (IFRRO)
Rainer JUST, President, Brussels
Nadine DAUER (Ms.), General Counsel and Deputy Secretary, Brussels
Caroline MORGAN (Ms.), Incoming Chief Executive Officer, Brussels
Christian ROBLIN, Manager, Brussels
Olav STOKKMO, Chief Executive and Secretary General, Brussels
German Library Association
Armin TALKE, Copyright Advisor, Berlin State Library, Prussian Heritage, Berlin
Instituto Autor
Adriana MOSCOSO DEL PRADO (Ms.), Secretario General, Madrid
International Authors Forum (IAF)
Luke ALCOTT, Secretariat, London
Barbara HAYES (Ms.), Secretariat, Public Affairs, London
International Council of Museums (ICOM)
Rina Elster PANTALONY (Ms.), Chair, Legal Affairs Committee and Director, Copyright
Advisory Office, Columbia University, New York
Karisma Foundation
Amalia TOLEDO-HERNÁNDEZ (Ms.), Project Coordinator, Bogota
Knowledge Ecology International, Inc. (KEI)
SCCR/33/7
Annex, page 22
Thiru BALASUBRAMANIAM, Geneva Representative, Geneva
James LOVE, Executive Director, Washington DC
Manon RESS (Ms.), Director, Information Society Projects, Washington DC
Latín Artis
Abel MARTIN VILLAREJO, General Secretary, Madrid
Library Copyright Alliance (LCA)
Jonathan BAND, Counsel, Washington, DC
Max-Planck Institute for Intellectual Property and Competition Law (MPI)
Silke VON LEWINSKI (Ms.), Professor, Munich
Motion Picture Association (MPA)
Christopher MARCICH, International President, Brussels
Katharina HIERSEMENZEL (Ms.), Senior Copyright Counsel, Brussels
North American Broadcasters Association (NABA)
Erica REDLER (Ms.), Head of Delegation, Ottawa
Scottish Council on Archives (SCA)
Victoria STOBO (Ms.), Copyright Policy Advisor, Glasgow
Society of American Archivists (SAA)
William MAHER, Professor, Illinois
The Japan Commercial Broadcasters Association (JBA)
Yoshihiro IWASA, Senior Director, Rights and Contracts Management, Programming Division,
Nippon Television Network Corporation, Tokyo
Kaori KIMURA (Ms.), Manager, Copyright Department, Programming Division, Asahi
Broadcasting Corporation, Osaka
Third World Network Berhad (TWN)
Mirza ALAS PORTILLO (Ms.), Researcher, Geneva
Gopakumar KAPPOORI, Legal advisor, Delhi
Sangeeta SHASHIKANT (Ms.), Legal Advisor, Geneva
Union européenne de radio-télévision (UER)/European Broadcasting Union (EBU)
Heijo RUIJSENAARS, Head of IP, Legal Affairs, Geneva
Union internationale des éditeurs (UIE)/International Publishers Association (IPA)
José BORGHINO, Secretary General, Geneva
André MYBURGH, Legal Adviser, Geneva
Anne BERGMAN-TAHON (Ms.), Director of the Federation of European Publishers, Brussels
Paul DODA, Chairman, Copyright Committee, New York
Carlo SCOLLO LAVIZZARI, Lawyer, Geneva
Ben STEWARD, Director Communications and Freedom to Publish, Geneva
Union de radiodiffusion Asie-Pacifique (URAP)/Asia-Pacific Broadcasting Union (ABU)
Suranga B. M. JAYALATH, Group Director, Colombo
Bo YAN, Director, Beijing
Nawaz DOOKHEE, Manager, Legal Department, Legal Department, Kuala Lumpur
Hirano MASATAKA, Copyright Officer, Tokyo
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Annex, page 23
Hayashida NAHOKO (Ms.), Head, Copyright Office, Tokyo
Seemantani SHARMA (Ms.), Legal and Intellectual Property Services Officer, Legal
Department, Kuala Lumpur
Union mondiale des aveugles (WBU)/World Blind Union (WBU)
Christopher FRIEND,Technical Advisor for the Marrakesh Treaty, Lewes, East Sussex
Judy FRIEND (Ms.), Marrakesh Team Member, Lewes, East Sussex
VI.
BUREAU/OFFICERS
Président/Chair:
Martín MOSCOSO (Pérou/Peru)
Vice-président/Vice-Chair:
Santiago CEVALLOS MENA (Équateur/Ecuador)
Secrétaire/Secretary:
Michele WOODS (Mme/Ms.) (OMPI/WIPO)
VI.
BUREAU INTERNATIONAL DE L’ORGANISATION MONDIALE DE LA
PROPRIÉTÉ INTELLECTUELLE (OMPI)/
INTERNATIONAL BUREAU OF THE WORLD INTELLECTUAL
PROPERTY ORGANIZATION (WIPO)
Francis GURRY, directeur général/Director General
Sylvie FORBIN (Mme/Ms.), Vice-directrice générale, Secteur du droit d’auteur et des industries
de la création / Deputy Director General, Copyright and Creative Industries Sector
Michele WOODS (Mme/Ms.), directrice, Division du droit d’auteur, Secteur du droit d’auteur et
des industries de la création /Director, Copyright Law Division, Copyright and Creative
Industries Sector
Carole CROELLA (Mme/Ms.), conseillère principale, Division du droit d’auteur, Secteur du droit
d’auteur et des industries de la création/Senior Counsellor, Copyright Law Division, Copyright
and Creative Industries Sector
Geidy LUNG (Mme/Ms.), conseillère principale, Division du droit d’auteur, Secteur du droit
d’auteur et des industries de la création /Senior Counsellor, Copyright Law Division, Copyright
and Creative Industries Sector
Valérie JOUVIN (Mme/Ms.), conseillère juridique principale, Division du droit d’auteur, Secteur
du droit d’auteur et des industries de la création/Senior Legal Counsellor, Copyright Law
Division, Copyright and Creative Industries Sector
Paolo LANTERI, juriste, Division du droit d’auteur, Secteur du droit d’auteur et des industries de
la création/Legal Officer, Copyright Law Division, Copyright and Creative Industries Sector
SCCR/33/7
Annex, page 24
Miyuki MONROIG (Mme/Ms.), juriste adjointe, Division du droit d’auteur, Secteur du droit
d’auteur et des industries de la création/Associate Officer, Copyright Law Division, Copyright
and Creative Industries Sector
Rafael FERRAZ VAZQUEZ, juriste adjoint, Division du droit d’auteur Secteur du droit d’auteur
et des industries de la création/Associate Legal Officer, Copyright Law Division, Copyright and
Creative Industries Sector
[Fin du document/
End of document]